How does the availability of prior art differ between original and reissue applications?
In most cases, the availability of prior art for reissue applications is the same as for original applications. However, the MPEP 1445 notes that there can be rare exceptions:
“Even in rare cases where, because of an amendment to the claims, the prior art available under 35 U.S.C. 102 and 103 during examination of the reissue application differs from that applied to the original application (see discussion in MPEP § 1440), the overall examination of the reissue application is conducted in the same manner as was the parent.”
This means that while the examination process remains the same, amendments to claims in a reissue application might occasionally result in different prior art being applicable under 35 U.S.C. 102 and 103. For more details on these rare cases, refer to MPEP § 1440.
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