Patent reissue is an extraordinary procedure aimed to correct an error in an issued patent when the error renders the patent wholly or partially inoperable or invalid.  Typical errors correctable by a reissue include a defective specification or drawing, claims that are too narrow or too broad, or failure to correctly reference priority documents.  Prior to 1952, the reissue statute specifically provided that defects correctable through reissue were those that had resulted from �inadvertence, accident, or mistake.�  However, in the current provision, Congress limited reissue to where a patentee could demonstrate an �error without any deceptive intention.�  Does the term �error� in the current statute encompass inadvertence, accidents, and mistakes?  When the �deceptive intention� can be found?  If an applicant for a patent makes a conscious decision to claim broadly while omitting a specific claim to the preferred species, and once the patent is granted, attempts to recapture the claim to that species by a reissue, should the reissue patent be granted?  The Court of Appeals for the Federal Circuit addressed these issues in the recent decision In re Rosuvastatin Calcium Patent Litigation.

Fixing application filing errors: When can a defective patent be reissued?

248th National Meeting (2014)

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