Chapter 1400 Correction of Patents 1400.01 Introduction 1430 Reissue Files Open to the Public and, 1401 Reissue Notice of Filing Reissue Announced in, 1402 Grounds for Filing Of®cial Gazette 1403 Diligence in Filing 1431 [Reserved] 1404 Submission of Papers Where Reissue -1439 Patent Is in Litigation 1440 Examination of Reissue Application 1405 Reissue and Patent Term 1441 Two-Month Delay Period 1406 Citation and Consideration of 1441.01 Protest and Pre-issuance Submission References Cited in Original Patent in Reissue Applications 1407 [Reserved] 1442 Special Status -1409 1442.01 Litigation-Related or PTAB 1410 Content of Reissue Application Trial-Related Reissues 1410.01 Reissue Applicant and Inventor©s Oath 1442.02 Concurrent Litigation or Trial Before or Declaration the Patent Trial and Appeal Board 1410.02 Assignee Consent to the Reissue 1442.03 Litigation Stayed 1411 Form of Speci®cation 1442.04 Litigation Involving Patent 1411.01 Certi®cate of Correction or 1442.05 Court Ordered Filing of Reissue Disclaimer in Original Patent Application 1411.02 New Matter 1443 Initial Examiner Review 1412 Content of Claims 1444 Review of Reissue Oath/Declaration 1412.01 Reissue Claims Must Be for Same 1445 Reissue Application Examined in Same General Invention Manner as Original Application 1412.02 Recapture of Canceled Subject Matter 1446 [Reserved] 1412.03 Broadening Reissue Claims -1447 1412.04 Correction of Inventorship By Reissue 1448 Fraud, Inequitable Conduct, or Duty 1412.05 Correction of Inventorship in a of Disclosure Issues Broadening Reissue Application 1449 Protest Filed in Reissue Where Patent 1413 Drawings Is in Interference or Contested Case 1414 Content of Reissue Oath/Declaration 1449.01 Concurrent Of®ce Proceedings 1414.01 Reissue Oath or Declaration in 1449.02 Interference in Reissue Reissue Application Filed On or After 1449.03 Reissue Application in Derivation September 16, 2012 Proceeding 1414.02 Reissue Oath or Declaration in 1450 Restriction and Election of Species Reissue Application Filed Before Made in Reissue Application September 16, 2012 1451 Divisional Reissue Applications; 1414.03 Supplemental Reissue Continuation Reissue Applications Oath/Declaration Where the Parent is Pending 1415 Reissue Application and Issue Fees 1452 Request for Continued Examination of 1415.01 Maintenance Fees on the Original Reissue Application Patent 1453 Amendments to Reissue Applications 1416 No Physical Surrender of Original 1454 Appeal Brief Patent 1455 Allowance and Issue 1417 Claim for Priority Under 35 U.S.C. 1456 Reissue Review 119(a)-(d) 1457 Design Reissue Applications and 1418 Noti®cation of Prior/Concurrent Patents Proceedings and Decisions Thereon, 1458 [Reserved] and of Information Known To Be -1459 Material to Patentability 1460 Effect of Reissue 1419 [Reserved] 1461 [Reserved] -1429 -1469 1470 Public Access to Reissue Applications 1400-1 Rev. 10.2019, June 2020 § 1400.01 MANUAL OF PATENT EXAMINING PROCEDURE 1471 [Reserved] www.uspto.gov/patents-application-process/appealing-patent- -1479 decisions/resources/board-trial-rules-and-practice. 1480 Certi®cates of Correction Ð Of®ce Mistake 1401 Reissue [R-08.2017] 1480.01 Expedited Issuance of Certi®cates of Correction - Error Attributable to 35 U.S.C. 251 Reissue of defective patents Of®ce (a) IN GENERAL.ÐWhenever any patent is, through error, 1481 Certi®cates of Correction - Applicant's deemed wholly or partly inoperative or invalid, by reason of a defective speci®cation or drawing, or by reason of the patentee Mistake claiming more or less than he had a right to claim in the patent, 1481.01 Correction of Assignees' Names the Director shall, on the surrender of such patent and the 1481.02 Correction of Named Inventor payment of the fee required by law, reissue the patent for the 1481.03 Correction of 35 U.S.C. 119 and 35 invention disclosed in the original patent, and in accordance U.S.C. 120 Bene®ts with a new and amended application, for the unexpired part of the term of the original patent. No new matter shall be introduced 1482 [Reserved] into the application for reissue. -1484 (b) MULTIPLE REISSUED PATENTS.Ð The Director 1485 Handling of Request for Certi®cates of may issue several reissued patents for distinct and separate parts Correction of the thing patented, upon demand of the applicant, and upon 1486 [Reserved] payment of the required fee for a reissue for each of such -1489 reissued patents. 1490 Disclaimers (c) APPLICABILITY OF THIS TITLE.Ð The provisions of this title relating to applications for patent shall be applicable to applications for reissue of a patent, except that application 1400.01 Introduction [R-08.2017] for reissue may be made and sworn to by the assignee of the entire interest if the application does not seek to enlarge the scope of the claims of the original patent or the application for A patent may be corrected or amended in eight ways, the original patent was ®led by the assignee of the entire interest. namely by: (d) REISSUE PATENT ENLARGING SCOPE OF CLAIMS.ÐNo reissued patent shall be granted enlarging the (1) reissue, scope of the claims of the original patent unless applied for within two years from the grant of the original patent. (2) the issuance of a certi®cate of correction 35 U.S.C. 251 (pre-AIA) Reissue of defective patents. which becomes a part of the patent, Whenever any patent is, through error without any deceptive (3) disclaimer, intention, deemed wholly or partly inoperative or invalid, by (4) reexamination, reason of a defective speci®cation or drawing, or by reason of the patentee claiming more or less than he had a right to claim (5) supplemental examination, in the patent, the Director shall, on the surrender of such patent and the payment of the fee required by law, reissue the patent (6) inter partes review, for the invention disclosed in the original patent, and in (7) post grant review, and accordance with a new and amended application, for the unexpired part of the term of the original patent. No new matter (8) covered business method review. shall be introduced into the application for reissue. The ®rst three ways are discussed in this chapter. The Director may issue several reissued patents for distinct and The fourth way (reexamination) is discussed in separate parts of the thing patented, upon demand of the MPEP Chapter 2200 for ex parte reexamination and applicant, and upon payment of the required fee for a reissue MPEP Chapter 2600 for inter partes reexamination for each of such reissued patents. requests (as of September 16, 2012 no new requests may be ®led). The ®fth way (supplemental The provisions of this title relating to applications for patent shall be applicable to applications for reissue of a patent, except examination) is discussed in MPEP Chapter 2800. that application for reissue may be made and sworn to by the The sixth, seventh, and eighth ways (inter partes assignee of the entire interest if the application does not seek to review, post grant review, and covered business enlarge the scope of the claims of the original patent. method review) are discussed in the Of®ce Patent Trial Practice Guide available at Rev. 10.2019, June 2020 1400-2 CORRECTION OF PATENTS § 1402 No reissued patent shall be granted enlarging the scope of the There must be at least one error in the patent to claims of the original patent unless applied for within two years provide grounds for reissue of the patent. If there is from the grant of the original patent. no error in the patent, the patent will not be reissued. The present section provides a discussion of what In this chapter, for reissue applications ®led before may be considered an error in the patent upon which September 16, 2012, all references to pre-AIA 35 to base a reissue application. U.S.C. 251 and 253 and pre-AIA 37 CFR 1.172, 1.175, 1.321, and 3.73 are to the law and rules in In accordance with 35 U.S.C. 251, the error upon effect on September 15, 2012. which a reissue is based must be one which causes the patent to be ªdeemed wholly or partly inoperative 35 U.S.C. 251 and pre-AIA 35 U.S.C. 251 permit or invalid, by reason of a defective speci®cation or the reissue of a patent to correct an error in the patent drawing, or by reason of the patentee claiming more and provide criteria for the reissue. Pre-AIA 35 or less than he had a right to claim in the patent.º U.S.C. 251 requires that any error to be corrected Thus, an error under 35 U.S.C. 251 has not been must have been made ªwithout deceptive intention.º presented where the correction to the patent is one Effective September 16, 2012, Public Law 112-29, of spelling, or grammar, or a typographical, editorial sec. 20, 125 Stat. 284 (Leahy-Smith America Invents or clerical error which does not cause the patent to Act (AIA)), amended 35 U.S.C. 251 to eliminate the be deemed wholly or partly inoperative or invalid ªwithout deceptive intentionº clause. This law as for the reasons speci®ed in 35 U.S.C. 251. These amended applies to reissue applications ®led on or corrections to a patent do not provide a basis for after September 16, 2012. 37 CFR 1.171 through reissue (although these corrections may also be 1.178 are rules directed to reissue. included in a reissue application, where a 35 U.S.C. 251 error is already present), and may be made via An Of®ce action in a reissue application should a certi®cate of correction; see MPEP § 1481.