What is the “overlooked aspects” exception in patent reissue recapture?
What is the “overlooked aspects” exception in patent reissue recapture?
The “overlooked aspects” exception is a rare circumstance where recapture may be allowed in a reissue application. This exception applies when the reissue claims are drawn to a separate invention or separate aspect/embodiment that was not covered by a claim at any point during prosecution of the original application.
According to MPEP 1412.02(I)(C):
“Claims to separate inventions/embodiments/species that were disclosed but never covered by the claims in the original application prosecution are claims to overlooked aspects. In other words, the reissue claims are drawn to a separate invention or separate aspect/embodiment/species not covered by a claim (e.g., a generic claim) at any point during the prosecution of the original application.”
It’s important to note that this exception is rare and does not apply to most cases of broadening reissues. The overlooked aspects must be truly separate and distinct from what was previously claimed.
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