Reissue Patent – Fixing the past

What is a Reissue patent?

Under 35 U.S.C. 251, an unexpired patent can be re-issued by surrendering the original/first issue on the following grounds.

  1. cleanse the erroneous or defective specification or drawing
  2. failed to or incorrectly claim the priority
  3. correct inventorship
  4. narrow the scope of a claim
  5. enlarge the scope of a claim

For the grounds (a) – (d), a reissue application along with a prescribed fee can be filed anytime while the patent is in force.

But to enlarge the scope of a claim in a patent, a reissue application along with a prescribed fee has to be filed within two years from the original issue date. Adding new matter to the reissue application is not allowed. The term of a reissue patent is the unexpired part of the term of the original patent.

Here’s a detailed guide on how to file a reissue patent application by the USPTO

Challenges in Reissue

  • Increased costs, the filing/examination fee of a reissue application is same as a normal application. It’s like paying twice the normal fee
  • A reissue application reopens the patent prosecution of the claims, with an opportunity for the examiner to raise objections.
  • A question on validity or allowance may rise during a reissue examination
  • Extended examination
Reissue Patent Bar Graph

fig: Reissue Patent Bar Graph