MPEP § 1405 — MPEP § 1405
Current through: 2022-07-01

1405-Reissue and Patent Term 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 1400 

 Section 1405 
 

 
 
 
 
 
 1405 Reissue and Patent Term [R-10.2019]

 35 U.S.C.
 251 prescribes the effect of reissue on the patent term by stating
 that 
 "the Director shall… reissue the patent… for the
 unexpired term of the original patent."
 
 
 
 

 The maximum term of the original patent is fixed at the time the patent is
 granted, subject to any adjustments to the number of days of extension or adjustment. See
 MPEP §
 2720 and § 2734 . While the term may be subsequently
 shortened, e.g., through the filing of a terminal disclaimer, it cannot be extended through
 the filing of a reissue. Accordingly, a deletion in a reissue application of an
 earlier-obtained benefit claim under 35 U.S.C. 120 will
 not operate to lengthen the term of the patent to be
 reissued.
 

 When a reissue application has been filed in an attempt to delete an
 earlier-obtained benefit claim under 35 U.S.C. 120 , it should be treated as
 follows:
 

 
 (A) More than one 
 "error"
 
 
 (as defined by 35 U.S.C. 251 ) is described in a
 reissue declaration, and one of the errors identified is the failure to delete a
 35 U.S.C.
 120 benefit claim in the original patent, or the erroneous
 making of a claim for 35 U.S.C. 120 benefit. 
 
 

 

 If one of the errors identified is the presence of the
 claim for 35
 U.S.C. 120 benefit in the patent, and patentee (1) states a
 belief that this error renders the original patent wholly or partly inoperative or
 invalid, and (2) is seeking to eliminate this error via the reissue proceeding, the
 Office will permit deletion of the benefit claim in the continuity data and will not
 object to or reject the reissue declaration on these grounds. For applications filed
 on or after September 16, 2012, applicant may do so by including an application data
 sheet that does not list the benefit claim with the filing of the reissue application
 or by filing a corrected application data sheet in compliance with 37 CFR
 1.76(c) that deletes the reference to the prior-filed
 application in a pending reissue application. For applications filed prior to
 September 16, 2012, applicant may do so by amending the specification (if the benefit
 claim is in the specification) or by submitting a supplemental application data sheet
 in compliance with pre-AIA 37 CFR 1.76(c) (no supplemental declaration is
 necessary) to delete any references to prior applications. See MPEP §
 601.05(b) , subsection II, for more information on
 supplemental application data sheets. If the benefit claim is in the specification,
 the specification should be amended to reflect the correction even if a supplemental
 or corrected application data sheet is filed. Assuming the reissue declaration
 appropriately identifies or describes at least one other error 
 being corrected, the reissue declaration would not be objected to for failure to
 comply with the requirements of 37 CFR 1.175 .
 

 
 

 

 Where the reissue declaration states that the patentee is making
 this correction in order to extend the term of the original patent, the examiner’s
 Office action will merely refer to the statement in the declaration and then point
 out with respect to such statement that 35 U.S.C. 251 only permits
 reissue 
 "... for the unexpired part of the term
 of the original patent."
 
 
 
 

 

 (B) Only one 
 "error"
 
 
 (as defined by 35 U.S.C. 251 ) is described in a
 reissue declaration, and that error is the failure to delete a 35 U.S.C.
 120 benefit claim in the original patent, or the erroneous
 making of a 35
 U.S.C. 120 benefit claim:
 
 (1) If the only error identified in the reissue declaration is
 stated to be the correction or adjustment of the patent term by deleting the
 35
 U.S.C. 120 benefit claim, a rejection under
 35 U.S.C.
 251 should be made, based on the lack of an appropriate
 error for reissue and failure to comply with 37 CFR
 1.175 .
 

 (2) If the only error identified in the reissue declaration is the
 need to delete a 35 U.S.C. 120 benefit
 claim, which the patentee seeks to now delete in the reissue application, (and
 no reference is made as to increasing the term of the patent), the examiner
 should not make a rejection under 35 U.S.C. 251 based on lack
 of an appropriate error for reissue and failure to comply with
 37 CFR
 1.175 . The examiner should examine the reissue
 application in accordance with 37 CFR 1.176 
 ( MPEP §
 1440 ). A statement should, however, be made in an
 Office action pointing out the lack of effect (of the change in the patent) on
 the patent term because 35 U.S.C. 251 only permits
 reissue 
 "... for the unexpired part of the
 term of the original patent."
 
 
 
 

 
 

 
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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