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

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.

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.