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.
To learn more:
Topics:
MPEP 2100 - Patentability,
MPEP 2147 - Biotechnology Process Applications; Pre - Aia 35 U.S.C. 103(B),
Patent Law,
Patent Procedure