Can a reissue application be used to provoke an interference?
Yes, a reissue application can be used to provoke an interference under certain circumstances. According to the MPEP, In appropriate circumstances, a reissue application subject to pre-AIA 35 U.S.C. 102(g) (first to invent) may be placed into interference with a patent or pending application.
However, there are specific conditions that must be met:
- The reissue application must include an appropriate reissue error as required by 35 U.S.C. 251.
- The reissue error cannot be based solely on the Office’s failure to declare an interference or suggest copying claims.
- The reissue application must either add copied claims not present in the original patent, amend claims to correspond to those of the patent or application with which interference is sought, or contain at least one error not directed to provoking an interference.
It’s important to note that the reissue oath/declaration must assert that the applicant erred in failing to include claims of the proper scope to provoke an interference in the original patent application.
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