What happens if a patent is granted without an election under pre-AIA 35 U.S.C. 103(b)?

If a patent is granted on an application that was entitled to the benefit of pre-AIA 35 U.S.C. 103(b), but no election was made due to an error, there is still a remedy available. The MPEP states:

However, if a patent is granted on an application entitled to the benefit of pre-AIA 35 U.S.C. 103(b) without an election having been made as a result of error, patentees may file a reissue application to permit consideration of process claims which qualify for pre-AIA 35 U.S.C. 103(b) treatment.

This means that patentees can file a reissue application to correct the error and potentially benefit from the provisions of pre-AIA 35 U.S.C. 103(b). For more information on reissue applications, refer to MPEP § 1412.02, subsection II.

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Topics: MPEP 2100 - Patentability, MPEP 2147 - Biotechnology Process Applications; Pre - Aia 35 U.S.C. 103(B), Patent Law, Patent Procedure
Tags: biotechnology patents, Patent Error, Pre-Aia 35 U.S.C. 103(B), reissue application