What is the three-step test for recapture analysis?

The Court of Appeals for the Federal Circuit established a three-step test for recapture analysis, as outlined in MPEP 1412.02:

1. Determine whether, and in what respect, the reissue claims are broader in scope than the original patent claims.
2. Determine whether the broader aspects of the reissue claims relate to subject matter surrendered in the original prosecution.
3. Determine whether the reissue claims were materially narrowed in other respects, so that the claims may not have been enlarged, and hence avoid the recapture rule.

This test helps examiners and practitioners assess whether impermissible recapture has occurred in a reissue application.

To learn more:

• recapture analysis
• three-step test
• patent reissue