MPEP § 1403 — MPEP § 1403
Current through: 2022-07-01

1403-Diligence in Filing 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 1400 

 Section 1403 
 

 
 
 
 
 
 1403 Diligence in Filing [R-08.2017]

 When a reissue application is filed within 2 years from the date of the
 original patent, a rejection on the grounds of lack of diligence or delay in filing the
 reissue should not normally be made. Ex parte Lafferty, 190 USPQ 202
 (Bd. App. 1975); but see Rohm & Haas Co. v. Roberts Chemical Inc., 142 F. Supp. 499, 110 USPQ 93 (S.W. Va.
 1956), rev’d on other grounds, 245 F.2d 693, 113 USPQ 423 (4th Cir.
 1957).
 

 
 35 U.S.C. 251 
 Reissue of defective patents 

 *****

 
 (d) REISSUE PATENT ENLARGING SCOPE OF CLAIMS.—No
 reissued patent shall be granted enlarging the scope of the claims of the original
 patent unless applied for within two years from the grant of the original patent.
 
 

 
 

 35 U.S.C. 251(d) corresponds to the
 provisions of pre-AIA 35
 U.S.C. 251 , fourth paragraph.
 

 Where any broadening reissue application is filed within two years from
 the date of the original patent, 35 U.S.C. 251 presumes diligence, and
 the examiner should not inquire why applicant failed to file the reissue application
 earlier within the two year period.
 

 See MPEP §
 1412.03 for broadening reissue practice. See also In re
 Graff, 111 F.3d 874, 42 USPQ2d 1471 (Fed. Cir. 1997); In re
 Bennett, 766 F.2d 524, 528, 226 USPQ 413, 416 (Fed. Cir. 1985); In re
 Fotland, 779 F.2d 31, 228 USPQ 193 (Fed. Cir. 1985). 
 

 A reissue application that is filed on the 2-year anniversary date of the
 patent grant is considered as being filed within 2 years. See Switzer v.
 Sockman, 333 F.2d 935, 142 USPQ 226 (CCPA 1964) (a similar rule in
 interferences). 
 

 A reissue application can be granted a filing date without an oath or
 declaration, or without the basic filing fee, search fee, or examination fee being present.
 See 37 CFR
 1.53(f) . Applicant will be given a period of time to provide the
 missing parts and to pay the surcharge under 37 CFR 1.16(f) . 
 

 While examiners should not make rejections based on lack of
 diligence (which does not include rejections under 35 U.S.C. 251 for a broadening reissue
 that is impermissibly filed outside of the two year time period set in 35 U.S.C. 251 ),
 courts have looked to see if a reissue applicant was diligent in correcting the error(s) in
 the patent. At least one recent decision from the U.S. Court of Appeals for the Federal
 Circuit discussed a diligence requirement for filing reissue applications, even narrowing
 reissues. See In re Rosuvastatin Calcium Patent Litigation, 703 F.3d
 511, 526, 105 USPQ2d 1437, 1447 (Fed. Cir. 2012). In this case, the majority found the
 reissue applicant diligent, but the dissent (J. Mayer) believed that the patentee was not
 diligent in filing the narrowing reissue application because the applicant was aware of an
 invalidating reference for over six years and had received a rejection in a counterpart
 foreign application based on the same reference over two years prior to filing the reissue
 application. See 703 F.3d at 537-38, 105 USPQ2d at 1455-56.
 

 [top] 

 

 

 
 

 
 

 

 

 

 
 
 
 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