MPEP § 1441 — MPEP § 1441
Current through: 2022-07-01

1441-Two-Month Delay Period 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 1400 

 Section 1441 
 

 
 
 
 
 
 1441 Two-Month Delay Period [R-08.2012]

 37 CFR
 1.176 provides that reissue applications will be acted on by the
 examiner in advance of other applications, i.e., “special.” Generally, a reissue
 application will not be acted on sooner than 2 months after announcement of the filing of
 the reissue has appeared in the Official Gazette. The 2-month delay is
 provided in order that members of the public may have time to review the reissue
 application and submit pertinent information to the Office before the examiner’s action.
 The pertinent information is submitted in the form of a protest under 37 CFR 1.291(a) . For
 a discussion as to protests under 37 CFR 1.291(a) in reissue
 applications, see MPEP §
 1441.01 . As set forth in MPEP § 1901.04 , the public should be aware
 that such submissions should be made as early as possible, because under certain
 circumstances, the 2-month delay period will not be employed. For example, the Office may
 act on a continuation or a divisional reissue application before the expiration of the
 2-month period after announcement. Additionally, the Office will entertain a petition under
 37 CFR
 1.182 which is accompanied by the required petition fee
 ( 37 CFR
 1.17(f) ) to act on a reissue application without delaying for 2
 months. Accordingly, protestors to reissue applications (see MPEP § 1441.01 ) cannot
 automatically assume that a full 2-month delay period will always be available. Appropriate
 reasons for requesting that the 2-month delay period not be employed include that
 litigation involving a patent has been stayed to permit the filing of an application for
 the reissue of the patent. Where the basis for the petition is ongoing litigation, the
 petition must clearly identify the litigation, and detail the specifics of the litigation
 that call for prompt action on the reissue application before the expiration of the 2-month
 delay period. Such petitions are decided by the Office of Patent Legal Administration.
 

 
 1441.01 Protest and Pre-issuance Submission in Reissue
 Applications [R-10.2019]
 
 I. PROTESTS, BUT NOT PRE-ISSUANCE SUBMISSIONS , ARE
 PERMITTED IN REISSUE APPLICATIONS A protest pursuant to 37 CFR 1.291 may be filed
 throughout the pendency of a reissue application, before the date of mailing of a
 notice of allowance, subject to the timing constraints of the examination, as set
 forth in MPEP §
 1901.04 . While a reissue application is not published under
 37 CFR
 1.211 , the reissue application is published pursuant to
 35 U.S.C.
 122(b)(1)(A) via an announcement in the Official
 Gazette (and public availability of the file contents) per
 37 CFR
 1.11(b) . Such a publication does not preclude the filing of a
 protest. 35 U.S.C.
 122(c) states:
 

 
 (c) PROTEST AND PRE-ISSUANCE OPPOSITION- The
 Director shall establish appropriate procedures to ensure that no protest or
 other form of pre-issuance opposition to the grant of a patent on an
 application may be initiated after publication of the application without the
 express written consent of the applicant.[Emphasis added.]
 

 
 A protest is precluded after publication for an application for an
 original patent, as a 
 "form of pre-issuance
 opposition."
 
 
 A reissue application is a post-issuance
 proceeding. A protest filed in a reissue application is not a 
 "form of pre-issuance opposition to the grant of a
 patent"
 
 
 because the patent to be reissued has already been
 granted. Thus, the prohibition against the filing of a protest after publication of
 an application under 35 U.S.C. 122(c) is
 not applicable to a reissue application and a protest is
 permitted after publication of the reissue application.
 

 Because a reissue application is a post-issuance
 proceeding, a pre-issuance submission under 35 U.S.C.
 122(e) is not permitted to be filed in a reissue application;
 35
 U.S.C. 122(e) is limited to pre-issuance submissions by third
 parties in patent applications. Third parties who have a need to submit information
 in a reissue application are advised to avail themselves of the protest provisions of
 37 CFR
 1.291 . Further, where a third-party submission is directed to a
 reissue application and would otherwise be compliant under 37 CFR
 1.290 , the Office will enter the submission into the record of
 the reissue application as a protest under 37 CFR 1.291 .
 

 II. TIME PERIOD FOR FILING PROTEST A protest with regard to a reissue application should
 be filed within the 2-month period following the announcement of the filing of the
 reissue application in the Official Gazette. A potential protestor should be aware
 that reissue applications are taken up “special” and a protest filed outside the
 2-month delay period may be received after action by the examiner. Further, if a
 protest is filed after a final rejection has been issued or prosecution on the merits
 has been otherwise closed for the reissue application, a petition for entry of the
 protest under 37
 CFR 1.182 is required. The petition must include an explanation
 as to why the additional time was necessary and the nature of the protest intended. A
 copy of the petition must be served upon the applicant in accordance with
 37 CFR
 1.248 . The petition should be directed to the Office of
 Petitions. A protest not filed prior to the date a notice of allowance under
 37 CFR
 1.311 is given or mailed will not be entered.
 

 If the protest of a reissue application cannot be filed within the
 2-month delay period, the protestor may petition to request (A) an extension of the
 2-month period following the announcement in the Official Gazette, 
 and (B) a delay of the examination until the extended period expires. Such a request
 will be considered only if filed in the form of a petition under 37 CFR 1.182 
 and accompanied by the petition fee set forth in 37 CFR
 1.17(f) . The petition under 37 CFR 1.182 and the petition fee
 must be filed before the expiration of the 2-month period following the announcement
 of the filing of the reissue application in the Official Gazette. 
 The petition must explain why the additional time is necessary and the nature of the
 protest intended. A copy of the petition must be served upon applicant in accordance
 with 37 CFR
 1.248 . The petition should be directed to the appropriate
 Technology Center (TC) which will forward the petition to the Office of Patent Legal
 Administration. 
 

 If the protest is a 
 "REISSUE
 LITIGATION"
 
 
 protest, it is particularly important that it be
 filed early if protestor wishes it considered at the time the Office first acts on
 the reissue application. Protestors should be aware that the Office will entertain
 petitions from the reissue applicants under 37 CFR 1.182 to waive the 2-month
 delay period in appropriate circumstances. Accordingly, protestors to reissue
 applications cannot automatically assume that the full 2-month delay period will
 always be available.
 

 The publication of a notice of a reissue application in the
 Official Gazette should be done prior to any examination of the
 reissue application. If an inadvertent failure to publish notice of the filing of the
 reissue application in the Official Gazette is recognized later in
 the examination, action should be taken to have the notice published as quickly as
 possible, and further action on the reissue application may be delayed until 2 months
 after the publication, allowing for any protests to be filed.
 

 See MPEP § 1901.06 for general procedures on examiner
 treatment of protests in reissue applications.
 

 

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 1400.01-Introduction 

 1401-Reissue 

 1402-Grounds for Filing 

 1403-Diligence in Filing 

 1404-Submission of Papers Where Reissue Patent Is in Litigation 

 1405-Reissue and Patent Term 

 1406-Citation and Consideration of References Cited in Original Patent 

 1407-1409-[Reserved] 

 1410-Content of Reissue Application 
 1410.01-Reissue Applicant and Inventor's Oath or Declaration 

 1410.02-Assignee Consent to the Reissue 

 
 

 1411-Form of Specification 
 1411.01-Certificate of Correction or Disclaimer in Original Patent 

 1411.02-New Matter 

 
 

 1412-Content of Claims 
 1412.01-Reissue Claims Must Be for Same General Invention 

 1412.02-Recapture of Canceled Subject Matter 

 1412.03-Broadening Reissue Claims 

 1412.04-Correction of Inventorship By Reissue 

 1412.05-Correction of Inventorship in a Broadening Reissue Application 

 
 

 1413-Drawings 

 1414-Content of Reissue Oath/Declaration 
 1414.01-Reissue Oath or Declaration in Reissue Application Filed On or After September 16, 2012 

 1414.02-Reissue Oath or Declaration in Reissue Application Filed Before September 16, 2012 

 1414.03-Supplemental Reissue Oath/Declaration 

 
 

 1415-Reissue Application and Issue Fees 
 1415.01-Maintenance Fees on the Original Patent 

 
 

 1416-No Physical Surrender of Original Patent 

 1417-Claim for Priority Under 35 U.S.C. 119(a)-(d) 

 1418-Notification of Prior/Concurrent Proceedings and Decisions Thereon, and of Information Known To Be Material to Patentability 

 1419-1429-[Reserved] 

 1430-Reissue Files Open to the Public and, Notice of Filing Reissue Announced in, Official Gazette 

 1431-1439-[Reserved] 

 1440-Examination of Reissue Application 

 1441-Two-Month Delay Period 
 1441.01-Protest and Pre-issuance Submission in Reissue Applications 

 
 

 1442-Special Status 
 1442.01-Litigation-Related or PTAB Trial-Related Reissues 

 1442.02-Concurrent Litigation or Trial Before the Patent Trial and Appeal Board 

 1442.03-Litigation Stayed 

 1442.04-Litigation Involving Patent 

 1442.05-Court Ordered Filing of Reissue Application 

 
 

 1443-Initial Examiner Review 

 1444-Review of Reissue Oath/Declaration 

 1445-Reissue Application Examined in Same Manner as Original Application 

 1446-1447-[Reserved] 

 1448-Fraud, Inequitable Conduct, or Duty of Disclosure Issues 

 1449-Protest Filed in Reissue Where Patent Is in Interference or Contested Case 
 1449.01-Concurrent Office Proceedings 

 1449.02-Interference in Reissue 

 1449.03-Reissue Application in Derivation Proceeding 

 
 

 1450-Restriction and Election of Species Made in Reissue Application 

 1451-Divisional Reissue Applications; Continuation Reissue Applications Where the Parent is Pending 

 1452-Request for Continued Examination of Reissue Application 

 1453-Amendments to Reissue Applications 

 1454-Appeal Brief 

 1455-Allowance and Issue 

 1456-Reissue Review 

 1457-Design Reissue Applications and Patents 

 1458-1459-[Reserved] 

 1460-Effect of Reissue 

 1461-1469-[Reserved] 

 1470-Public Access to Reissue Applications 

 1471-1479-[Reserved] 

 1480-Certificates of Correction — Office Mistake 
 1480.01-Expedited Issuance of Certificates of Correction - Error Attributable to Office 

 
 

 1481-Certificates of Correction - Applicant’s Mistake 
 1481.01-Correction of Assignees’ Names 

 1481.02-Correction of Named Inventor 

 1481.03-Correction of 35 U.S.C. 119 and 35 U.S.C. 120 Benefits 

 
 

 1482-1484-[Reserved] 

 1485-Handling of Request for Certificates of Correction 

 1486-1489-[Reserved] 

 1490-Disclaimers 

 

 

 
 

 
 
 

 
 

 

 
 
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 Last Modified: 
 
 03/09/2026 20:49:26