MPEP Section 706.03(x), Reissue

Executive summary:

This document contains Section 706.03(x) ("Reissue") of the Manual of Patent Examining Procedure (the "M.P.E.P."), Eighth Edition, Eighth Revision (July 2010). This page was last updated in January 2011. You may return to the section index to find a particular section. Alternatively, you may search the MPEP using the search box that appears on the left side of every page of BitLaw--you may restrict your search to the MPEP on the search results page.

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706.03(x) Reissue [R-3]

The examination of reissue applications is covered in MPEP Chapter 1400.

35 U.S.C. 251 forbids the granting of a reissue "enlarging the scope of the claims of the original patent" unless the reissue is applied for within 2 years from the grant of the original patent. This is an absolute bar and cannot be excused. This prohibition has been interpreted to apply to any claim which is broader in any respect than the claims of the original patent. Such claims may be rejected as being barred by 35 U.S.C. 251. However, when the reissue is applied for within 2 years >or properly claims the benefit of a broadening reissue application filed within 2 years of the patent grant<, the examiner does not go into the question of undue delay.

The same section permits the filing of a reissue application by the assignee of the entire interest only in cases where it does not "enlarge the scope of the claims of the original patent." Such claims which do enlarge the scope may also be rejected as barred by the statute. In In re Bennett, 766 F.2d 524, 226 USPQ 413 (Fed. Cir. 1985), however, the court permitted the erroneous filing by the assignee in such a case to be corrected.

A defective reissue oath affords a ground for rejecting all the claims in the reissue application. See MPEP § 1444.

Note that a reissue application is "special" and remains so even if applicant does not make a prompt reply.