Can a reissue application proceed if all patent claims were canceled by a reexamination certificate?

Yes, a reissue application can still proceed even if all patent claims were canceled by a reexamination certificate. However, specific steps must be taken:

1. The patent owner must file a petition under 37 CFR 1.183 to waive 37 CFR 1.570 and/or 37 CFR 1.997(d), depending on the type of reexamination.
2. The petition would be grantable if the patent owner shows that either:
   • The reissue claims are narrower than those canceled by the certificate, or
   • The reissue claims meet specific criteria regarding patentability and presentation.

As stated in MPEP 1449.01, “The reissue application can still proceed even where all of the patent claims were canceled by the certificate, based on the following. Where the certificate issues and publishes to cancel all existing patent claims, the reissue application can continue in the Office to correct the 35 U.S.C. 251 ‘error’ of presenting the existing claims, which were in-fact unpatentable.”

To learn more:

• reissue application
• canceled claims
• reexamination certificate
• patent law