Can non-elected inventions be recovered through a reissue application?

This page is an FAQ based on guidance from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only: it is not legal advice.

Generally, non-elected inventions cannot be recovered through a reissue application if the applicant failed to file a continuing application prior to the issuance of the original patent. According to MPEP 1412.01:

“Where a restriction (or an election of species) requirement was made in an application and applicant permitted the elected invention to issue as a patent without filing a continuing application on the non-elected invention(s) or on non-claimed subject matter distinct from the elected invention, the non-elected invention(s) and non-claimed, distinct subject matter cannot be recovered by filing a reissue application.”

This failure to timely file a continuing application is not considered an error correctable by reissue under 35 U.S.C. 251. In such cases, reissue claims should be rejected for lack of any defect in the original patent and lack of any error in obtaining the original patent.