Grace Period

Refers in general to a period during which the application of a strict time limit may be softened, provided a party cures its time default during the grace period. For example, although in principle a publication or sale of an invention before filing a patent application may preclude patenting, many patent systems provide a limited ‘grace period’ after such an error during which an inventor can cure its error by filing an application. Such periods vary between six months and one year. Similarly, a failure to pay fees to patent or trademark offices when due can in many instances be cured by payment of the fees during a grace period, frequently with a late payment penalty.

A key concern with grace periods is that they do not exist universally and are not consistent; they can vary in length and in the nature of the exceptions they make. Thus there is a risk that an inventor or patent agent from a jurisdiction that provides for a grace period will assume that it applies in jurisdictions where none exists or alternately, that it is of the same length, or ‘graces’ the same acts (for example); vice versa, one should not assume that because the possibility of securing a patent has been precluded by, say, publication in a home jurisdiction (e.g., under the European Patent Convention), it has expired in several important jurisdictions that do apply grace periods (for example the United States.)

About thirty-eight countries do provide for grace periods with respect to patents including the United States, Japan, and Canada. There is no grace period in Europe, though introduction of one is under discussion. In contract law a grace period is usually referred to as a cure period.

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