Beyond Forgiveness:
Due Care as the Next Frontier in Patent Law

September 15, 2025

Patents are unforgiving when it comes to deadlines. Miss a maintenance fee, and your rights may vanish. Yet the consequences of that lapse—and the possibility of revival—depend heavily on where you file.

In the United States, 35 U.S.C. § 41(c)(1) and 37 C.F.R. § 1.378 offer patentees a broad safety net: if a lapse was “unintentional,” the USPTO will generally reinstate the patent. Canada, by contrast, has moved in the opposite direction. Recent Canadian Federal Court decisions interpreting s. 46(5) of the Canadian Patent Act require patentees to show not just good faith, but systemic safeguards proving that “due care” was exercised. Europe, too, has long demanded “all due care” under Article 122 EPC.

This divergence is not a technical footnote—it reflects competing philosophies about innovation policy, and it is beginning to shape litigation, licensing, and due diligence across borders.

Canada’s Strict Turn: Due Care as Organizational Duty

Canadian reinstatement law has long required “due care,” but recent cases have clarified just how demanding that standard is.

In Matco Tools Corporation v. Canada (Attorney General), 2025 FC 835, the Canadian Federal Court quashed the Commissioner’s refusal to reinstate a patent application. Justice Roy wrote: “A robust due care inquiry should cover the entire chain of events, from the earliest root cause to the final opportunity for correction.”

And he distilled the standard into a practical test: “…the core question is whether the applicant took all measures that a reasonably prudent [applicant] would have taken, given the particular set of circumstances to avoid the failure ‒ and despite taking those measures ‒ the failure nevertheless occurred.”

The Court faulted the Commissioner for ignoring the proximate cause: “The migration error was the proximate cause that led to the deemed abandonment of the Application.”

That uncompromising logic was reinforced in Taillefer v. Canada (Attorney General), 2025 FC 450, where the patentee argued that a notice had gone to junk mail. The Court was blunt: due care is “not measured by good intentions but by the reasonableness of the systems in place.” A single spam filter failure, without backup procedures, was fatal.

The cumulative effect is a regime where reinstatement is exceptional, not routine. Canadian patentees must be prepared to prove that they built systems capable of surviving foreseeable human and technical errors.

The U.S. Counterpoint: Forgiveness, Not Forensics

The American approach could hardly be more different. The statutory hook, 35 U.S.C. § 41(c)(1), permits revival where a delay was “unavoidable” or “unintentional.” While “unavoidable” remains in the law, it is almost never satisfied—requiring perfection from a “reasonably prudent person.” In practice, virtually all petitions proceed under “unintentional delay.”

In Ray v. Lehman, 55 F.3d 606 (Fed. Cir. 1995), the Federal Circuit acknowledged the statutory language on “unavoidable” delay, noting that “…in determining whether a delay in paying a maintenance fee was unavoidable, one looks to whether the party responsible for payment of the maintenance fee exercised the due care of a reasonably prudent person.”

Critically, the court affirmed that the USPTO had broad discretion to accept revival petitions, and in practice the Office rarely demands detailed proof. Earlier, in In re Application of G, 11 USPQ2d 1378 (Comm’r Pat. 1989), the USPTO clarified that negligence, docketing mistakes, or administrative oversights did not defeat revival, so long as abandonment was not intentional.

The USPTO codified this lenient approach in MPEP § 2590, even noting in the Federal Register (65 Fed. Reg. 54604, 2000) that “the USPTO generally accepts the statement of unintentional delay without requiring further information.”

In short, where Canada demands evidence of robust compliance systems, the U.S. largely takes patentees at their word.

Europe’s Longstanding Standard: “All Due Care”

Canada’s recent jurisprudence echoes the European Patent Office’s strict “all due care” approach under Article 122 EPC, which governs requests for re-establishment of rights.

In the seminal case J 5/80 (OJ EPO 1981, 343), the EPO Boards of Appeal held the words “all due care required by the circumstances” in Article 122(1) EPC to mean that an applicant or proprietor is expected to take every reasonable measure within their control to ensure that time limits are observed.

Later, in J 3/88 (OJ EPO 1990, 177), the Board held that the duty of care applies both to the applicant himself and to any professional representative acting on his behalf, and requires that a suitable system for monitoring time limits is maintained.

These principles have been consistently applied: reinstatement in Europe is only granted when the applicant can show that every reasonable precaution was taken and that the failure occurred despite a normally reliable system.

Canada’s Matco and Taillefer decisions effectively import this European rigor, positioning Canadian law closer to the EPC and farther from the U.S.

Divergence in Practice: Consequences for Innovators

This divide—Canada and Europe on one side demanding proof of systems, and the U.S. on the other forgiving intent—creates real asymmetry. A U.S. patent may be revived on the strength of a sworn statement, while its Canadian or European counterparts remain permanently abandoned.

In litigation, this can fracture enforcement, undermining cross-border strategies. In licensing, counterparties may discount portfolios missing Canadian or European rights, reasoning that a patent family without global coverage is weaker. And in M&A, acquirers increasingly ask not just whether patents are alive, but whether they were maintained under systems that could withstand a due care inquiry abroad.

Toward Convergence?

Globally, the trend points one way: toward accountability. Europe has long demanded “all due care.” Canada now applies it with teeth. The U.S., with its forgiving “unintentional delay” doctrine, looks increasingly like the outlier.

If harmonization pressures mount—as they often do in IP law—the U.S. may face calls to tighten its standard. A hybrid test, requiring proof of both unintentionality and reasonable preventative measures, is a plausible future reform.

Due Care as the New Currency of Innovation

Canada’s Matco and Taillefer decisions are more than procedural tightening; they reflect a new philosophy of patent stewardship. Europe has long spoken in the same register, demanding “all due care” under Article 122 EPC. Together, these jurisdictions are making it clear: patents are no longer preserved by intent alone. They are preserved by proof of vigilance.

The United States, for now, still extends forgiveness under the banner of “unintentional delay.” But as global standards converge, leniency looks increasingly out of step. In a world where cross-border portfolios drive value, due care is becoming the new currency of innovation—an expectation that rights holders can demonstrate not only creativity in the lab, but discipline in how they protect it.

For innovators, the message is simple: don’t calibrate your systems to the lowest bar. Build them to satisfy the highest, because the highest is what will ultimately matter—in licensing negotiations, in M&A due diligence, in litigation, and in the courtroom of public policy. When patents are judged not only by their claims but by the care invested in preserving them, the companies that treat vigilance as part of innovation will be the ones whose rights endure.