Can prior art considered during the original patent examination be used again in a reissue application?
Yes, prior art that was considered during the original patent examination can be used again in a reissue application. The MPEP 1445 clearly states:
“Likewise, the fact that during prosecution of the patent the examiner considered, may have considered, or should have considered information such as, for example, a specific prior art document, does not have any bearing on, or prevent, its use as prior art during prosecution of the reissue application.”
This means that examiners are free to use any relevant prior art during the examination of a reissue application, regardless of whether it was previously considered in the original patent prosecution. The reissue examination is conducted independently of the original examination.
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