MPEP § 1401 — Reissue (Annotated Rules)
§1401 Reissue
This page consolidates and annotates all enforceable requirements under MPEP § 1401, including statutory authority, regulatory rules, examiner guidance, and practice notes. It is provided as guidance, with links to the ground truth sources. This is information only, it is not legal advice.
Reissue
This section addresses Reissue. Primary authority: 35 U.S.C. 251, 37 CFR 1.172, and 37 CFR 1.171. Contains: 5 requirements, 1 guidance statement, and 6 other statements.
Key Rules
Broadening Reissue (Two-Year Limit)
(c) APPLICABILITY OF THIS TITLE.— The provisions of this title relating to applications for patent shall be applicable to applications for reissue of a patent, except that application for reissue may be made and sworn to by the assignee of the entire interest if the application does not seek to enlarge the scope of the claims of the original patent or the application for the original patent was filed by the assignee of the entire interest.
(d) REISSUE PATENT ENLARGING SCOPE OF CLAIMS.—No reissued patent shall be granted enlarging the scope of the claims of the original patent unless applied for within two years from the grant of the original patent.
(d) REISSUE PATENT ENLARGING SCOPE OF CLAIMS.—No reissued patent shall be granted enlarging the scope of the claims of the original patent unless applied for within two years from the grant of the original patent.
The provisions of this title relating to applications for patent shall be applicable to applications for reissue of a patent, except that application for reissue may be made and sworn to by the assignee of the entire interest if the application does not seek to enlarge the scope of the claims of the original patent.
No reissued patent shall be granted enlarging the scope of the claims of the original patent unless applied for within two years from the grant of the original patent.
AIA Effective Dates
In this chapter, for reissue applications filed before September 16, 2012, all references to pre-AIA 35 U.S.C. 251 and 253 and pre-AIA 37 CFR 1.172, 1.175, 1.321, and 3.73 are to the law and rules in effect on September 15, 2012.
35 U.S.C. 251 and pre-AIA 35 U.S.C. 251 permit the reissue of a patent to correct an error in the patent and provide criteria for the reissue. Pre-AIA 35 U.S.C. 251 requires that any error to be corrected must have been made “without deceptive intention.” Effective September 16, 2012, Public Law 112-29, sec. 20, 125 Stat. 284 (Leahy-Smith America Invents Act (AIA)), amended 35 U.S.C. 251 to eliminate the “without deceptive intention” clause. This law as amended applies to reissue applications filed on or after September 16, 2012. 37 CFR 1.171 through 1.178 are rules directed to reissue.
35 U.S.C. 251 and pre-AIA 35 U.S.C. 251 permit the reissue of a patent to correct an error in the patent and provide criteria for the reissue. Pre-AIA 35 U.S.C. 251 requires that any error to be corrected must have been made “without deceptive intention.” Effective September 16, 2012, Public Law 112-29, sec. 20, 125 Stat. 284 (Leahy-Smith America Invents Act (AIA)), amended 35 U.S.C. 251 to eliminate the “without deceptive intention” clause. This law as amended applies to reissue applications filed on or after September 16, 2012. 37 CFR 1.171 through 1.178 are rules directed to reissue.
35 U.S.C. 251 and pre-AIA 35 U.S.C. 251 permit the reissue of a patent to correct an error in the patent and provide criteria for the reissue. Pre-AIA 35 U.S.C. 251 requires that any error to be corrected must have been made “without deceptive intention.” Effective September 16, 2012, Public Law 112-29, sec. 20, 125 Stat. 284 (Leahy-Smith America Invents Act (AIA)), amended 35 U.S.C. 251 to eliminate the “without deceptive intention” clause. This law as amended applies to reissue applications filed on or after September 16, 2012. 37 CFR 1.171 through 1.178 are rules directed to reissue.
Original Patent Requirement (Same Invention)
(a) IN GENERAL.—Whenever any patent is, through error, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue.
(c) APPLICABILITY OF THIS TITLE.— The provisions of this title relating to applications for patent shall be applicable to applications for reissue of a patent, except that application for reissue may be made and sworn to by the assignee of the entire interest if the application does not seek to enlarge the scope of the claims of the original patent or the application for the original patent was filed by the assignee of the entire interest.
Whenever any patent is, through error without any deceptive intention, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue.
Reissue Patent Practice
(a) IN GENERAL.—Whenever any patent is, through error, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue.
Whenever any patent is, through error without any deceptive intention, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue.
This paragraph should be used as a heading in all Office actions in reissue applications.
Maintenance Fee Amounts
(b) MULTIPLE REISSUED PATENTS.— The Director may issue several reissued patents for distinct and separate parts of the thing patented, upon demand of the applicant, and upon payment of the required fee for a reissue for each of such reissued patents.
(b) MULTIPLE REISSUED PATENTS.— The Director may issue several reissued patents for distinct and separate parts of the thing patented, upon demand of the applicant, and upon payment of the required fee for a reissue for each of such reissued patents.
AIA vs Pre-AIA Practice
35 U.S.C. 251 and pre-AIA 35 U.S.C. 251 permit the reissue of a patent to correct an error in the patent and provide criteria for the reissue. Pre-AIA 35 U.S.C. 251 requires that any error to be corrected must have been made “without deceptive intention.” Effective September 16, 2012, Public Law 112-29, sec. 20, 125 Stat. 284 (Leahy-Smith America Invents Act (AIA)), amended 35 U.S.C. 251 to eliminate the “without deceptive intention” clause. This law as amended applies to reissue applications filed on or after September 16, 2012. 37 CFR 1.171 through 1.178 are rules directed to reissue.
35 U.S.C. 251 and pre-AIA 35 U.S.C. 251 permit the reissue of a patent to correct an error in the patent and provide criteria for the reissue. Pre-AIA 35 U.S.C. 251 requires that any error to be corrected must have been made “without deceptive intention.” Effective September 16, 2012, Public Law 112-29, sec. 20, 125 Stat. 284 (Leahy-Smith America Invents Act (AIA)), amended 35 U.S.C. 251 to eliminate the “without deceptive intention” clause. This law as amended applies to reissue applications filed on or after September 16, 2012. 37 CFR 1.171 through 1.178 are rules directed to reissue.
Assignee as Applicant Signature
The Director may issue several reissued patents for distinct and separate parts of the thing patented, upon demand of the applicant, and upon payment of the required fee for a reissue for each of such reissued patents.
Form Paragraph Usage
An Office action in a reissue application should include form paragraph 14.01.
Examiner Form Paragraphs
Examiner form paragraphs are standard language that you might see in an Office Action or communication from the USPTO. Examiners have latitude to change the form paragraphs, but you will often see this exact language.
For reissue applications filed before September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172 , 1.175 , and 3.73 are to the law and rules in effect on September 15, 2012. Where specifically designated, these are “pre-AIA” provisions.
For reissue applications filed on or after September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172 , 1.175 , and 3.73 are to the current provisions.
- Reissue Rules for Pre-AIA Applications
- Patent Reissue Criteria Without Deceptive Intent
- Correction Without Deceptive Intention Required for Pre-AIA Patent Reissue
- AIA Amends Reissue Error Correction
- Reissue After September 16, 2012
- Reissue Rules for Patents Effective Post-2012
- Assignee Can Swear to Reissue If No Scope Enlargement
- Reissue Claims Must Not Enlarge Original Patent Scope
Citations
| Primary topic | Citation |
|---|---|
| AIA Effective Dates AIA vs Pre-AIA Practice | 35 U.S.C. § 251 |
| AIA Effective Dates AIA vs Pre-AIA Practice | 37 CFR § 1.171 |
| AIA Effective Dates | 37 CFR § 1.172 |
| Form Paragraph Usage | Form Paragraph § 14.01 |
Source Text from USPTO’s MPEP
This is an exact copy of the MPEP from the USPTO. It is here for your reference to see the section in context.
Official MPEP § 1401 — Reissue
Source: USPTO1401 Reissue [R-08.2017]
35 U.S.C. 251 Reissue of defective patents
- (a) IN GENERAL.—Whenever any patent is, through error, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue.
- (b) MULTIPLE REISSUED PATENTS.— The Director may issue several reissued patents for distinct and separate parts of the thing patented, upon demand of the applicant, and upon payment of the required fee for a reissue for each of such reissued patents.
- (c) APPLICABILITY OF THIS TITLE.— The provisions of this title relating to applications for patent shall be applicable to applications for reissue of a patent, except that application for reissue may be made and sworn to by the assignee of the entire interest if the application does not seek to enlarge the scope of the claims of the original patent or the application for the original patent was filed by the assignee of the entire interest.
- (d) REISSUE PATENT ENLARGING SCOPE OF CLAIMS.—No reissued patent shall be granted enlarging the scope of the claims of the original patent unless applied for within two years from the grant of the original patent.
35 U.S.C. 251 (pre-AIA) Reissue of defective patents.
Whenever any patent is, through error without any deceptive intention, deemed wholly or partly inoperative or invalid, by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than he had a right to claim in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent for the invention disclosed in the original patent, and in accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced into the application for reissue.
The Director may issue several reissued patents for distinct and separate parts of the thing patented, upon demand of the applicant, and upon payment of the required fee for a reissue for each of such reissued patents.
The provisions of this title relating to applications for patent shall be applicable to applications for reissue of a patent, except that application for reissue may be made and sworn to by the assignee of the entire interest if the application does not seek to enlarge the scope of the claims of the original patent.
No reissued patent shall be granted enlarging the scope of the claims of the original patent unless applied for within two years from the grant of the original patent.
In this chapter, for reissue applications filed before September 16, 2012, all references to pre-AIA 35 U.S.C. 251 and 253 and pre-AIA 37 CFR 1.172, 1.175, 1.321, and 3.73 are to the law and rules in effect on September 15, 2012.
35 U.S.C. 251 and pre-AIA 35 U.S.C. 251 permit the reissue of a patent to correct an error in the patent and provide criteria for the reissue. Pre-AIA 35 U.S.C. 251 requires that any error to be corrected must have been made “without deceptive intention.” Effective September 16, 2012, Public Law 112-29, sec. 20, 125 Stat. 284 (Leahy-Smith America Invents Act (AIA)), amended 35 U.S.C. 251 to eliminate the “without deceptive intention” clause. This law as amended applies to reissue applications filed on or after September 16, 2012. 37 CFR 1.171 through 1.178 are rules directed to reissue.
An Office action in a reissue application should include form paragraph 14.01.
¶ 14.01 Reissue Application, Applicable Laws and Rules Heading
For reissue applications filed before September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the law and rules in effect on September 15, 2012. Where specifically designated, these are “pre-AIA” provisions.
For reissue applications filed on or after September 16, 2012, all references to 35 U.S.C. 251 and 37 CFR 1.172, 1.175, and 3.73 are to the current provisions.
Examiner Note:
- This paragraph should be used as a heading in all Office actions in reissue applications.