Reissue

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A reissue application may be filed by a patent owner to correct an error in a patent. Reissue applications are useful to correct substantive errors that cannot be corrected with a certificate of correction. For example, if new art is discovered after a patent issues, a reissue application may be used to get the new prior art considered by the US Patent and Trademark Office.

In order for a reissue to be proper, the patent must be considered “wholly inoperative or partly inoperative or invalid” as a result of the error. See MPEP § 1401. Such errors may arise during the preparation and/or prosecution of an application that later became a patent.

Common bases for filing a reissue application include the following:

  • The claims are too narrow or too broad (but note that broadening reissue can be only be filed within two years of a patent’s issuance).
  • The disclosure contains inaccuracies.
  • Applicant failed to or incorrectly claimed foreign priority.
  • Applicant failed to make reference to or incorrectly made reference to prior co-pending applications.

See MPEP § 1402.

Thus, reissue applications can be a helpful tool for a patent owner to strengthen its patent portfolio before it is attacked by competitors or to prepare a patent for use in a later litigation.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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