Reissue Applications

What reissue is for

Under 35 U.S.C. § 251, when a patent is “wholly or partly inoperative or invalid” because of an error, such as a defective specification or drawing, or claiming more or less than the patentee had a right to claim, the Director may reissue the patent for the unexpired part of its term. The applicant surrenders the original patent.

Key features

• Who files: the patent owner, with an oath or declaration identifying the error.
• Examination: the whole patent is open to examination; claims can be rejected on any ground that applies to applications.
• Broadening: allowed only if applied for within two years of the original grant (§ 251(d)); a reissue that enlarges claim scope is a “broadening reissue.”
• Recapture: the rule against recapture prevents an owner from regaining subject matter surrendered during original prosecution to obtain allowance.
• Intervening rights: under § 252, a reissue that changes claims can give third parties who practiced the invention before the reissue absolute or equitable intervening rights.

When it fits

Reissue is often considered when claims are narrower than the disclosure supports, when an error in the claims or specification exposes the patent to invalidity, or when a continuing application is not available. Consider the alternatives:

Problem	Option
Clerical or typographical error	Certificate of correction
Need to submit new prior art and protect against inequitable conduct claims	Supplemental examination
Claim cancellation or terminal part of term	Disclaimer

Reissue invites a fresh look at every claim, so plan for the possibility that claims are narrowed or rejected.