What happens if the only error identified in a reissue declaration is to delete a 35 U.S.C. 120 benefit claim?
If the only error identified in the reissue declaration is the need to delete a 35 U.S.C. 120 benefit claim, and there’s no mention of increasing the patent term, the examiner should not reject the application under 35 U.S.C. 251. According to MPEP 1405:
“If the only error identified in the reissue declaration is the need to delete a 35 U.S.C. 120 benefit claim, which the patentee seeks to now delete in the reissue application, (and no reference is made as to increasing the term of the patent), the examiner should not make a rejection under 35 U.S.C. 251 based on lack of an appropriate error for reissue and failure to comply with 37 CFR 1.175.“
The examiner should examine the reissue application in accordance with 37 CFR 1.176, but should include a statement in an Office action pointing out that the change will not affect the patent term.
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