Why is it important to verify that a patent has not expired before examining a reissue application?

Verifying that a patent has not expired is crucial before examining a reissue application for the following reasons:

1. Legal Authority: Once a patent has expired, the Director of the USPTO no longer has the authority to reissue the patent under 35 U.S.C. 251.
2. Validity of Reissue: An expired patent cannot be reissued, making any reissue application on an expired patent invalid.
3. Resource Efficiency: Examining a reissue application for an expired patent would waste USPTO resources.

The MPEP clearly states: “The examiner should verify that the patent on which the reissue application is based has not expired, either because its term has run or because required maintenance fees have not been paid. Once a patent has expired, the Director of the USPTO no longer has the authority under 35 U.S.C. 251 to reissue the patent.”

This requirement is based on the Federal Circuit decision in In re Morgan, 990 F.2d 1230, 26 USPQ2d 1392 (Fed. Cir. 1993). For more information, see MPEP § 1415.01.

To learn more:

• patent expiration
• reissue application
• patent examination
• 35 U.S.C. 251
• maintenance fees