What is the “recapture rule” in broadening reissue claims?
The “recapture rule” is an important concept in broadening reissue claims. According to MPEP 1412.03:
“A reissue will not be granted to ‘recapture’ claimed subject matter which was surrendered during prosecution of the original application.”
This rule prevents patent owners from using reissue applications to regain subject matter that was deliberately given up during the original patent prosecution to obtain the patent. The rule applies when:
- The reissue claims are broader than the original patent claims
- The broader aspects relate to surrendered subject matter
- The reissue claims are not materially narrowed in other respects
Understanding this rule is crucial for patent practitioners when considering broadening reissue applications.
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