What is the relationship between fraud in the original patent and a reissue application?
The MPEP clearly establishes a direct relationship between fraud in the original patent and any subsequent reissue application. It states:
Clearly, “fraud” practiced or attempted in an application which issues as a patent is “fraud” practiced or attempted in connection with any subsequent application to reissue that patent. The reissue application and the patent are inseparable as far as questions of “fraud,” “inequitable conduct,” or “violation of the duty of disclosure” are concerned.
This means that any fraudulent activity in the original patent application is considered to carry over to the reissue application. The MPEP cites In re Heany and Norton v. Curtiss to support this principle. In Norton v. Curtiss, the court stated:
We take this to indicate that any conduct which will prevent the enforcement of a patent after the patent issues should, if discovered earlier, prevent the issuance of the patent.
This underscores the importance of addressing any issues of fraud or inequitable conduct before pursuing a reissue application, as these issues cannot be purged through the reissue process.
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