Can a reissue application be filed to correct errors discovered during litigation?
Can a reissue application be filed to correct errors discovered during litigation?
Yes, a reissue application can be filed to correct errors discovered during litigation, but there are important considerations:
- Error requirement: The error must be one that renders the patent wholly or partly inoperative or invalid.
- No new matter: The correction must not introduce new matter beyond the original disclosure.
- Timing: Reissue applications can be filed at any time during the life of the patent, including during litigation.
- Disclosure: The applicant must disclose the ongoing litigation to the USPTO.
MPEP 1442.04 states: “Where the patent for which reissue is sought is involved in litigation, the applicant (or the applicant’s attorney or agent) must comply with 37 CFR 1.178(b) and notify the Office.”
It’s important to note that filing a reissue application during litigation may have strategic implications and should be carefully considered with legal counsel.
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