Can a delayed benefit claim be accepted after the patent has issued?
No, a delayed benefit claim cannot be accepted after the patent has issued. The MPEP 211.04 clearly states:
“A petition under 37 CFR 1.78 to accept an unintentionally delayed claim for the benefit of a prior-filed application will not be granted in an issued patent.”
This means that once a patent has been granted, it is no longer possible to add or correct benefit claims through the petition process. The opportunity to make such changes ends when the patent issues.
If an applicant discovers after issuance that a benefit claim was not properly made or was omitted, they may have limited options:
- Consider filing a reissue application to correct the error, if it qualifies as an error correctable by reissue.
- In some cases, a certificate of correction might be appropriate, but this is generally limited to typographical or clerical errors.
It’s crucial for applicants to ensure all desired benefit claims are properly made and recorded before the patent issues to avoid complications and potential loss of priority rights.
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