Can a reissue application be based solely on the Office’s failure to declare an interference?

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.

No, a reissue application cannot be based solely on the Office’s failure to declare an interference. The MPEP clearly states:

Reissue error must be based upon applicant error; a reissue cannot be based solely on the error of the Office for failing to declare an interference or to suggest copying claims for the purpose of establishing an interference.

This principle is supported by several court cases, including:

• In re Keil, 808 F.2d 830, 1 USPQ2d 1427 (Fed. Cir. 1987)
• In re Dien, 680 F.2d 151, 214 USPQ 10 (CCPA 1982)
• In re Bostwick, 102 F.2d 886, 888, 41 USPQ 279, 281 (CCPA 1939)
• In re Guastavino, 83 F.2d 913, 916, 29 USPQ 532, 535 (CCPA 1936)

The reissue must be based on an error made by the applicant, not an alleged error by the USPTO in failing to declare an interference.