How does the examiner handle defective reissue oath or declaration?

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.

When examining a reissue application, the examiner must carefully review the reissue oath or declaration. If it is found to be defective, the examiner should take specific actions as outlined in MPEP 1440:

“Where the reissue oath/declaration is defective, a rejection under 35 U.S.C. 251 must be made. An examiner should reject the claims of the reissue application under 35 U.S.C. 251 as being based on a defective reissue oath/declaration.”

The examiner’s actions include:

• Rejecting the claims under 35 U.S.C. 251
• Explaining the nature of the defect in the oath/declaration
• Providing guidance on how to correct the defect
• Allowing the applicant to submit a new oath/declaration to overcome the rejection

It’s important to note that the applicant has the opportunity to correct the defective oath/declaration during prosecution, and the examiner should provide clear instructions on how to do so.