MPEP § 1414 — MPEP § 1414
Current through: 2022-07-01

1414-Content of Reissue Oath/Declaration 
 
 

 
 
 
 
 
 
 
 

 

 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 

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 Manual of Patent Examining Procedure 

 Chapter 1400 

 Section 1414 
 

 
 
 
 
 
 1414 Content of Reissue Oath/Declaration [R-07.2022]

 The reissue oath/declaration as required by 37 CFR 1.175 is
 an essential part of a reissue application and must be filed with the application, or
 within the time period set under 37 CFR 1.53(f) along with the required
 surcharge as set forth in 37 CFR 1.16(f) in order to avoid abandonment. The question of the
 sufficiency of the reissue oath/declaration filed under 37 CFR 1.175 must in each case be
 reviewed and decided personally by the primary examiner.
 

 Much of the required content of a reissue oath or declaration will differ
 based on the filing date of the reissue application. However, all reissue oaths or
 declarations must contain the following:
 

 
 (A) A statement that the applicant believes the original patent to be
 wholly or partly inoperative or invalid—
 
 (1) by reason of a defective specification or drawing, or

 (2) by reason of the patentee claiming more or less than patentee
 had the right to claim in the patent; and
 

 
 

 (B) A statement of at least one error which is relied upon to support
 the reissue application, i.e., as the basis for the reissue.
 

 
 Subsections I and II below describe the requirements for
 each of the aforementioned statements. See MPEP §
 1414.01 for the remaining requirements for the reissue oath or
 declaration in a reissue application filed on or after September 16, 2012;
 MPEP §
 1414.02 for the remaining requirements of a reissue oath or
 declaration in a reissue application filed before September 16, 2012; and
 MPEP §
 1414.03 for supplemental reissue oaths or declarations in reissue
 applications filed before September 16, 2012.
 

 I. A STATEMENT THAT THE APPLICANT BELIEVES THE ORIGINAL PATENT TO BE WHOLLY OR
 PARTLY INOPERATIVE OR INVALID BY REASON OF A DEFECTIVE SPECIFICATION OR DRAWING, OR
 BY REASON OF THE PATENTEE CLAIMING MORE OR LESS THAN PATENTEE HAD THE RIGHT TO CLAIM
 IN THE PATENT In order to satisfy this requirement, a declaration can state for
 example:
 

 
 1. “Applicant believes the original patent to be partly inoperative
 or invalid by reason of a defective specification or drawing.”
 

 2. “Applicant believes the original patent to be partly inoperative
 or invalid by reason of the patentee claiming more than patentee had a right to
 claim in the patent.”
 

 3. “Applicant believes the original patent to be partly inoperative
 or invalid by reason of the patentee claiming less than patentee had a right to
 claim in the patent.”
 

 
 It should be noted that the reissue oath/declaration must also satisfy
 the requirement for a statement of at least one error being relied upon as the basis for
 reissue, in the manner set forth in subsection II below.
 

 Even though only one error upon which reissue is based
 needs to be described in the reissue oath/declaration, if PTO/SB/51 or PTO/SB/52 form is
 used (or PTO/AIA/05 or PTO/AIA/06, for applications filed on or after September 16,
 2012), applicant needs to check the appropriate box(es) on the form identifying each of
 the reasons why the patent is wholly or partly inoperative or invalid. Even if a PTO
 form is not used, applicant needs to state each of the reasons why the patent is wholly
 or partly inoperative or invalid in the reissue oath/declaration.
 

 Form paragraph 14.01.05 may be used where the reissue oath/declaration
 does not provide the required statement as to applicant’s belief that the original
 patent is wholly or partly inoperative or invalid. 
 

 ¶ 14.01.05 Defective Reissue Oath/Declaration, 37 CFR 1.175 - No Statement of
 Defect in the Patent
 

 The reissue oath/declaration filed
 with this application is defective because it fails to contain the statement(s) required under
 37 CFR
 1.175 as to applicant’s belief that the original patent is wholly or
 partly inoperative or invalid. [1] 

 Examiner Note:
 
 1. Use this form paragraph when
 applicant: (a) fails to allege that the original patent is inoperative or invalid and/or
 (b) fails to state the reason of a defective specification or drawing, or of patentee
 claiming more or less than patentee had the right to claim in the patent. In bracket 1,
 point out the specific defect to applicant by using the language of (a) and/or (b), as
 it is appropriate.
 

 2. Form paragraph
 14.14 must
 follow this form paragraph. 
 
 
 
 II. A STATEMENT OF AT LEAST ONE ERROR WHICH IS RELIED UPON TO SUPPORT THE REISSUE
 APPLICATION (I.E., THE BASIS FOR THE REISSUE) 
 (A) A reissue applicant must acknowledge the existence of an error in
 the specification, drawings, or claims, which error causes the original patent to
 be defective. In re Wilder, 736 F.2d 1516, 222 USPQ 369 (Fed.
 Cir. 1984). A change or departure from the original specification or claims
 represents an “error” in the original patent under 35 U.S.C.
 251 . See MPEP § 1402 for a discussion of
 grounds for filing a reissue that may constitute the “error” required by
 35 U.S.C.
 251 . Not all changes with respect to the patent constitute
 the “error” required by 35 U.S.C. 251 . It is noted
 that an error to be corrected under 35 U.S.C.
 251 may be the addition of a claim or claims that is/are
 narrower in scope than the existing patent claims, without any narrowing of the
 existing patent claims. See In re Tanaka, 640 F.3d 1246, 1251,
 98 USPQ2d 1331, 1334 (Fed. Cir. 2011).
 

 (B) Applicant need only specify in the reissue oath/declaration one
 of the errors upon which reissue is based. Where applicant specifies one such
 error, this requirement of a reissue oath/declaration is satisfied. Applicant may
 specify more than one error and examiners should not object that more than one
 error is specified in the reissue oath/declaration.
 
 

 

 Where more than one error is specified in the oath/declaration
 and some of the designated “errors” are found to not be “errors” under
 35 U.S.C.
 251 , any remaining error which is an error under
 35 U.S.C.
 251 will still support the reissue.
 

 
 

 

 The “at least one error” pursuant to 35 U.S.C.
 251 which is relied upon to support the reissue application
 must be specifically identified in the oath/declaration. It is
 not necessary, however, to point out how (or when) the
 error arose or occurred. Further, it is not necessary to
 point out how (or when) the error was discovered. If an applicant chooses to point
 out these matters, the statements directed to these matters will not be reviewed
 by the examiner, and the applicant should be so informed in the next Office
 action. What is needed for the oath/declaration statement as to error is the
 identification of “at least one error” relied upon. 
 

 
 

 

 For an application filed on or after September 16,
 2012 that seeks to enlarge the scope of the claims of the patent, the reissue oath
 or declaration must also identify a claim that the application seeks to broaden in
 the identification of the error that is relied upon to support the reissue
 application. A general statement, e.g., that all claims are broadened, is not
 sufficient to satisfy this requirement. In specifically identifying the error as
 required by 37 CFR 1.175(a) , it is sufficient that the reissue
 oath/declaration identify the claim being broadened and a single word, phrase, or
 expression in the specification or in an original claim, and how it renders the
 original patent wholly or partly inoperative or invalid. The corresponding
 corrective action which has been taken to correct the original patent need not be
 identified in the oath/declaration. If the initial reissue oath/declaration
 “states at least one error” in the original patent, and, in
 addition , recites the specific corrective action taken in the reissue
 application, the oath/declaration would be considered acceptable, even though the
 corrective action statement is not required.
 

 

 (C) It is not sufficient for an
 oath/declaration to merely state “this application is being filed to correct
 errors in the patent which may be noted from the changes made in the disclosure.”
 Rather, the oath/declaration must specifically identify an error. In addition, it
 is not sufficient to merely reproduce the claims with brackets and underlining and
 state that such will identify the error. Any error in the claims must be
 identified by reference to the specific claim(s) and the specific claim language
 wherein lies the error.
 
 

 

 A statement in the oath/declaration of 
 "…failure to include a claim directed to …"
 
 
 
 and then reciting all the limitations of a newly added claim, would not be
 considered a sufficient 
 "error"
 
 
 statement because applicant has not pointed out
 what the other claims lacked that the newly added claim has, or vice versa. Such a
 statement would be no better than saying in the reissue oath or declaration that
 
 "this application is being filed to correct
 errors in the patent which may be noted from the change made by adding new
 claim 10."
 
 
 In both cases, the error has not been
 identified.
 

 
 

 

 Likewise, a statement of the error as 
 "…the inclusion of claims 3-5 which were unduly
 broad…"
 
 
 and then canceling claims 3-5, would not be
 considered a sufficient 
 "error"
 
 
 statement because applicant has not pointed out
 what the canceled claims lacked that the remaining claims contain. The statement
 of what the remaining claims contain need not identify specific limitations, but
 rather may provide a general identification, such as 
 "Claims 3-5 did not provide for any of the tracking mechanisms
 of claims 6-12, nor did they provide an attachment mechanism such as those in
 claims 1-2 and 9-16."
 
 
 
 

 

 (D) For continuation or divisional reissue
 applications:
 
 (1) Where a continuation reissue
 application is filed with a copy of the reissue oath/declaration from the
 parent reissue application, and the parent reissue application is
 not to be abandoned , the reissue oath/declaration should be
 accepted by the Office of Patent Application Processing (OPAP) without
 further evaluation, because it is an oath/declaration, albeit improper under
 35
 U.S.C. 251 . The examiner should, however, reject the
 claims of the continuation reissue application under 35 U.S.C.
 251 as being based on an oath/declaration that does
 not identify an error being corrected by the continuation reissue
 application, and should require a new oath/declaration that identifies a new
 error or a statement explaining compliance with 37 CFR
 1.175(f)(2) if appropriate. If the same error
 corrected in the parent is also being corrected in the continuation reissue
 application, but the error is being corrected in a different way, a
 statement is needed to explain compliance with 37 CFR
 1.175(f)(2) for a reissue application filed on or
 after September 16, 2012. For these applications, a petition under
 37 CFR
 1.183 is not needed. For a reissue application filed
 before September 16, 2012, a petition under 37 CFR
 1.183 will be needed to waive pre-AIA 37 CFR
 1.175(e) in order to rely on the same error identified
 in the parent but being corrected in a different way. See 37 CFR
 1.175(f)(2) for reissue applications filed on or after
 September 16, 2012, and pre-AIA 37 CFR 1.175(e) 
 for reissue applications filed before September 16, 2012. One of form
 paragraphs 14.01.01 , 14.01.02 , or
 14.01.03 may be used.
 

 
 
 (2) Where a continuation 
 reissue application is filed with a copy of the reissue oath/declaration
 from the parent reissue application, and the parent reissue application
 is, or will be abandoned , the copy of the reissue
 oath/declaration should be accepted by the Office of Patent Application
 Processing (OPAP), and the examiner should check to ensure that the
 oath/declaration identifies an error which is still being corrected in the
 continuation application. For reissue applications filed before September
 16, 2012, pursuant to pre-AIA 37 CFR
 1.175(b)(1) , for any error corrected via the
 preliminary amendment which is not covered by the oath or declaration
 submitted in the parent reissue application, applicant must submit a
 supplemental oath/declaration stating that such error arose without any
 deceptive intention on the part of the applicant. See MPEP §
 1414.03 . 
 

 
 
 (3) Where a divisional 
 reissue application is filed with a copy of the reissue oath/declaration
 from the parent reissue application, the reissue oath/declaration should be
 accepted by OPAP, because it is an oath/declaration, though it may be
 improper under 35 U.S.C. 251 . The
 examiner should check the copy of the oath/declaration to ensure that it
 identifies an error being corrected by the divisional reissue application.
 The copy of the oath/declaration from the parent reissue application may or
 may not cover an error being corrected by the divisional reissue application
 because the divisional reissue application is (by definition) directed to a
 new invention. If the copy of the oath/declaration does not cover an error
 being corrected by the divisional reissue application, the examiner should
 reject the claims of the divisional reissue application under
 35
 U.S.C. 251 as being based on an oath/declaration that
 does not identify an error being corrected by the divisional reissue
 application, and require a new oath/declaration. Even where the divisional
 reissue application was filed on or after September 16, 2012, a new reissue
 oath/declaration will be required, because the divisional reissue
 application is a new application, and a new application requires the error
 to be set forth in the oath/declaration. If the copy of the reissue
 oath/declaration from the parent reissue application does in fact cover an
 error being corrected in the divisional reissue application, no such
 rejection should be made. See MPEP §
 1414.01 . Form paragraph
 14.01.01 may be used where the reissue
 oath/declaration does not identify an error.
 

 
 

 
 ¶ 14.01.01 Defective Reissue Oath/Declaration, 37 CFR 1.175 - No Statement of
 a Specific Error
 

 The reissue oath/declaration filed with
 this application is defective because it fails to identify at least one error which is relied
 upon to support the reissue application. See 37 CFR 1.175 and MPEP §
 1414 .
 

 Examiner Note:
 
 1. Use this form paragraph when the
 reissue oath or declaration does not contain any statement of an error which is relied
 upon to support the reissue application. 
 

 2. This form paragraph can be used
 where the reissue oath or declaration does not even mention error. It can also be used
 where the reissue oath or declaration contains some discussion of the concept of error
 but never in fact identifies a specific error to be relied upon. For example, it is not
 sufficient for an oath or declaration to merely state “this application is being filed
 to correct errors in the patent which may be noted from the changes made in the
 disclosure.” 
 

 3. Form paragraph
 14.14 must
 follow this form paragraph.
 
 
 

 Where the reissue oath/declaration does identify an error or errors,
 the oath/declaration must be checked carefully to ensure that at least one of the errors
 identified is indeed an “error” which will support the filing of a reissue, i.e., an
 “error” that will provide grounds for reissue of the patent. See MPEP § 1402 . If the
 error identified in the oath/declaration is not an appropriate error upon which a
 reissue can be based, then the oath/declaration must be indicated to be defective in the
 examiner’s Office action. 
 

 
 

 

 Form paragraphs 14.01.02 and
 14.01.03 may be used where the reissue oath/declaration
 fails to provide at least one error upon which a reissue can be based. 
 

 ¶ 14.01.02 Defective Reissue Oath/Declaration, 37 CFR 1.175 - The Identified
 “Error” Is Not Appropriate Error
 

 The reissue oath/declaration filed with
 this application is defective because the error which is relied upon to support the reissue
 application is not an error upon which a reissue can be based. See 37 CFR 1.175 and
 MPEP §
 1414 .
 

 Examiner Note:
 
 1. Use this form paragraph when the
 reissue oath/declaration identifies only one error which is relied upon to support the
 reissue application, and that one error is not an appropriate error upon which a reissue
 can be based. 
 

 2. Form paragraph
 14.14 must
 follow this form paragraph. 
 
 
 

 ¶ 14.01.03 Defective Reissue Oath/Declaration, 37 CFR 1.175 - Multiple
 Identified “Errors” Not Appropriate Errors
 

 The reissue oath/declaration filed
 with this application is defective because none of the errors which are relied upon to support
 the reissue application are errors upon which a reissue can be based. See 37 CFR 1.175 
 and MPEP §
 1414 .
 

 Examiner Note:
 
 1. Use this form paragraph when the
 reissue oath/declaration identifies more than one error relied upon to support the
 reissue application, and none of the errors are appropriate errors upon which a reissue
 can be based.
 

 2. Note that if the reissue
 oath/declaration identifies more than one error relied upon, and at least one of the
 errors is an error upon which reissue can be based, this form paragraph should not be
 used, despite the additional reliance by applicant on “errors” which do not support the
 reissue. Only one appropriate error is needed to support a reissue.
 

 3. Form paragraph
 14.14 must
 follow this form paragraph. 
 
 
 

 ¶ 14.01.06 Defective Reissue Oath/Declaration, 37 CFR 1.175 -
 General
 

 The reissue oath/declaration filed with this application is defective
 (see 37 CFR
 1.175 and MPEP § 1414 ) because of the following:
 

 Examiner Note:
 
 1. Use this form paragraph when the reissue oath/declaration does
 not comply with 37
 CFR 1.175 , and none of form paragraphs 14.01.01 -
 14.01.05 
 or 14.05.02.fti apply.
 

 2. This form paragraph must be followed by an explanation of why
 the reissue oath/declaration is defective. 
 

 3. Form paragraph 14.14 must follow the explanation of the defect.
 
 
 

 ¶ 14.14 Rejection, Defective Reissue Oath or Declaration

 Claim [1] rejected as
 being based upon a defective reissue [2] under 35 U.S.C. 251 as set
 forth above. See 37 CFR
 1.175 .
 

 The nature of the defect(s) in the
 [3] is set forth in the discussion above in this Office action. 
 

 Examiner Note:
 
 1. In bracket 1, list all claims in the reissue application. See
 MPEP §
 1444 , subsection II.
 

 2. This paragraph must be preceded
 by form paragraph 14.01
 and should be preceded by form paragraphs
 14.01.01 
 to 14.01.06 
 as appropriate
 

 3. In brackets 2 and 3, insert
 either --oath-- or --declaration--.
 
 
 

 
 1414.01 Reissue Oath or Declaration in Reissue Application
 Filed On or After September 16, 2012 [R-01.2024]
 

 [Editor Note: See MPEP § 1414.02 for reissue
 applications filed before September 16, 2012.] 

 
 37 CFR 1.175 Inventor's oath or declaration for a reissue application. 

 
 (a) The inventor’s oath or declaration for a reissue
 application, in addition to complying with the requirements of
 §
 1.63 , § 1.64 , or
 §
 1.67 , must also specifically identify at least one error
 pursuant to 35 U.S.C. 251 being relied
 upon as the basis for reissue and state that the applicant believes the
 original patent to be wholly or partly inoperative or invalid by reason of a
 defective specification or drawing, or by reason of the patentee claiming more
 or less than the patentee had the right to claim in the patent. 
 

 (b) If the reissue application seeks to enlarge the
 scope of the claims of the patent (a basis for the reissue is the patentee
 claiming less than the patentee had the right to claim in the patent), the
 inventor’s oath or declaration for a reissue application must identify a claim
 that the application seeks to broaden. A claim is a broadened claim if the
 claim is broadened in any respect.
 

 (c) The inventor, or each individual who is a joint
 inventor of a claimed invention, in a reissue application must execute an oath
 or declaration for the reissue application, except as provided for in
 §
 1.64 , and except that the inventor’s oath or declaration
 for a reissue application may be signed by the assignee of the entire interest
 if:
 
 (1) The application does not seek to enlarge
 the scope of the claims of the original patent; or 
 

 (2) The application for the original patent was
 filed under § 1.46 by the
 assignee of the entire interest.
 

 
 

 (d) If errors previously identified in the
 inventor’s oath or declaration for a reissue application pursuant to paragraph
 (a) of this section are no longer being relied upon as the basis for reissue,
 the applicant must identify an error being relied upon as the basis for
 reissue.
 

 (e) The inventor’s oath or declaration for a reissue
 application required by paragraph (a) of this section may be submitted under
 the provisions of § 1.53(f) , except that the
 provisions of § 1.53(f)(3) do not apply
 to a reissue application.
 

 (f)
 
 (1) The requirement for the inventor’s oath or
 declaration for a continuing reissue application that claims the benefit
 under 35 U.S.C. 120 ,
 121 , 365(c) , or
 386(c) in compliance
 with § 1.78 of an
 earlier-filed reissue application may be satisfied by a copy of the
 inventor’s oath or declaration from the earlier-filed reissue
 application, provided that:
 
 (i) The inventor, or each individual who
 is a joint inventor of a claimed invention, in the reissue
 application executed an inventor’s oath or declaration for the
 earlier-filed reissue application, except as provided for in
 § 1.64 ;
 

 (ii) The continuing reissue application
 does not seek to enlarge the scope of the claims of the original
 patent; or 
 

 (iii) The application for the original
 patent was filed under § 1.46 by the
 assignee of the entire interest.
 

 
 

 (2) If all errors identified in the inventor’s
 oath or declaration from the earlier-filed reissue application are no
 longer being relied upon as the basis for reissue, the applicant must
 identify an error being relied upon as the basis for reissue.
 

 
 

 (g) An oath or declaration filed at any time
 pursuant to 35 U.S.C. 115(h)(1) , will
 be placed in the file record of the reissue application, but may not
 necessarily be reviewed by the Office.
 

 
 

 The inventor’s oath or declaration for a reissue
 application must comply with the requirements of 37 CFR 1.63 , 1.64 , or
 1.67 . Therefore, in addition to identifying the inventor or joint
 inventor and the application to which it is directed, the reissue oath/declaration
 must:
 

 
 (A) include a statement that the person executing the
 oath or declaration believes the named inventor or joint inventor to be the original
 inventor or an original joint inventor of a claimed invention in the application;
 and
 

 (B) state that the application was made or was
 authorized to be made by the person executing the oath or declaration.
 

 
 Depending on the circumstances, the inventor’s oath or
 declaration for a reissue application can be (a) a reissue declaration by the inventor,
 (b) an assignment by the inventor containing the statements required by
 37 CFR
 1.63 and 1.175 (“assignment-statement”), (c)
 a reissue declaration by the assignee, or (d) a substitute statement by the patentee, or
 the current patent owner if there has been an assignment.
 

 In accordance with 37 CFR 1.63(c) , a person may not
 execute an oath or declaration for an application unless that person has reviewed and
 understand the contents of the application, including the claims, and is aware of the
 duty to disclose to the Office all information known to the person to be material to the
 patentability as defined in 37 CFR 1.56 . See also the discussion
 regarding the requirements of an oath/declaration beginning at MPEP § 602 . See also
 MPEP §
 604 for the requirements of a substitute statement under
 37 CFR
 1.64 .
 

 Unlike in non-reissue, non-provisional patent
 applications, submission of the inventor’s oath or declaration in a reissue application
 cannot be delayed until payment of the issue fee. The application must contain the
 inventor’s oath or declaration executed by or with respect to each inventor before the
 case can be released for examination. See 37 CFR 1.175(e) .
 

 The assignee of 100% of the entire right, title and
 interest in the patent (who must be named as the reissue applicant) may sign the
 declaration if the application does not seek to enlarge the scope of the claims in the
 original patent, or the application for the original patent was filed under
 37 CFR
 1.46 by the assignee of the entire interest. See
 MPEP §
 605.01 . If the reissue applicant is a juristic entity, then
 the reissue declaration must be signed by an official of the applicant who has a title
 that carries apparent authority, or someone who makes a statement of authorization to
 act (e.g., an employee of the assignee who by corporate resolution of a Board of
 Directors has been given authority to act on behalf of the juristic entity). See
 MPEP §
 325 . A patent practitioner may only sign the reissue
 declaration as an official of a juristic entity applicant if the practitioner has been
 given authority to act as explained above and may not sign the substitute statement
 merely on the basis of having power of attorney in the application. 
 

 The patentee, or current patent owner if there has been
 an assignment, may sign a substitute statement, in accordance with 37 CFR 1.64 ,
 on behalf of an inventor who is deceased, legally incapacitated, cannot be found or
 reached after diligent effort, or refused to execute the oath or declaration under
 37 CFR
 1.175 , even if the reissue application was filed to enlarge the
 scope of the claims (e.g., a broadening reissue). This procedure is provided for in
 37 CFR
 1.175(c) by the language “except as provided for in
 §
 1.64 .”
 

 Depending on the circumstances, form PTO/AIA/05, Reissue
 Application Declaration By The Inventor, form PTO/AIA/06, Reissue Application
 Declaration By The Assignee, or form PTO/AIA/07, Substitute Statement in Lieu of an Oath
 or Declaration for Reissue Patent Application ( 35 U.S.C.
 115(d) and 37 CFR 1.64 ), may be used to prepare
 a declaration in a reissue application.
 

 

 

 

 

 

 

 

 

 

 

 

 
 1414.02 Reissue Oath or Declaration in Reissue Application
 Filed Before September 16, 2012 [R-01.2024]
 

 [Editor Note: See MPEP § 1414.01 for reissue
 applications filed on or after September 16, 2012.] 

 
 Pre-AIA 37 CFR 1.175 Reissue oath or declaration. 

 
 (a) The reissue oath or declaration in addition to
 complying with the requirements of § 1.63 , must also state
 that: 
 
 (1) The applicant believes the original patent
 to be wholly or partly inoperative or invalid by reason of a defective
 specification or drawing, or by reason of the patentee claiming more or
 less than the patentee had the right to claim in the patent, stating at
 least one error being relied upon as the basis for reissue; and 
 

 (2) All errors being corrected in the reissue
 application up to the time of filing of the oath or declaration under
 this paragraph arose without any deceptive intention on the part of the
 applicant. 
 

 
 

 (b)
 
 (1) For any error corrected, which is not
 covered by the oath or declaration submitted under paragraph (a) of this
 section, applicant must submit a supplemental oath or declaration stating
 that every such error arose without any deceptive intention on the part
 of the applicant. Any supplemental oath or declaration required by this
 paragraph must be submitted before allowance and may be submitted: 
 
 (i) With any amendment prior to
 allowance; or 
 

 (ii) In order to overcome a rejection
 under 35 U.S.C. 251 
 made by the examiner where it is indicated that the submission of a
 supplemental oath or declaration as required by this paragraph will
 overcome the rejection. 
 

 
 

 (2) For any error sought to be corrected after
 allowance, a supplemental oath or declaration must accompany the
 requested correction stating that the error(s) to be corrected arose
 without any deceptive intention on the part of the applicant.
 

 
 

 (c) Having once stated an error upon which the
 reissue is based, as set forth in paragraph (a)(1), unless all errors
 previously stated in the oath or declaration are no longer being corrected, a
 subsequent oath or declaration under paragraph (b) of this section need not
 specifically identify any other error or errors being corrected. 
 

 (d) The oath or declaration required by paragraph
 (a) of this section may be submitted under the provisions of §
 1.53(f) .
 

 (e) The filing of any continuing reissue application
 which does not replace its parent reissue application must include an oath or
 declaration which, pursuant to paragraph (a)(1) of this section, identifies at
 least one error in the original patent which has not been corrected by the
 parent reissue application or an earlier reissue application. All other
 requirements relating to oaths or declarations must also be met.
 

 
 
 I. ERROR WITHOUT DECEPTIVE INTENT A statement in the reissue oath or declaration that
 all errors being corrected in the reissue application arose without any deceptive
 intention on the part of the applicant is required for a reissue application filed
 before September 16, 2012. In order to satisfy this requirement, the following
 statement may be included: 
 

 
 
 "All errors corrected in the present reissue application up to
 the time of signing of this oath/declaration, or errors which are being
 corrected by a paper filed concurrently with this oath/declaration which
 correction of errors I/we have reviewed, arose without any deceptive intention
 on the part of the applicant."
 
 
 
 

 
 Nothing more is required. The examiner will determine
 only whether the reissue oath/declaration contains the required averment; the
 examiner will not make any comment as to whether it appears
 that there was in fact deceptive intention (see MPEP § 2012 ). It
 is noted that a reissue oath/declaration will not be effective for any errors which
 are corrected by a filing made after the execution of the reissue oath/declaration,
 unless it is clear from the record that the parties executing the document were aware
 of the nature of the correction when they executed the document. Further, a reissue
 oath/declaration with an early date of execution cannot be filed after a correction
 made later in time, to cover the correction made after the execution date. This is
 so, even if the reissue oath/declaration states that all errors up to the filing of
 the oath/declaration arose without any deceptive intention on the part of the
 applicant. 
 

 Form paragraph 14.01.04.fti 
 may be used where the reissue oath/declaration does not provide the required
 statement as to “without any deceptive intention on the part of the applicant.”
 

 ¶ 14.01.04.fti Defective Reissue Oath/Declaration in Application Filed Before
 Sept. 16, 2012, 37 CFR 1.175- Lack of Statement of “Without Any Deceptive
 Intention”
 

 The reissue oath/declaration filed with this application, which has a
 filing date before September 16, 2012, is defective because it fails to contain a statement
 that all errors which are being corrected in the reissue application up to the time of filing
 of the oath/declaration arose without any deceptive intention on the part of the applicant.
 See pre-AIA 37 CFR
 1.175 and MPEP § 1414 .
 

 Examiner Note:
 
 1. For reissue applications filed before September 16, 2012, use this
 form paragraph when the reissue oath/declaration does not contain the statement required
 by pre-AIA 37 CFR
 1.175 that all errors being corrected in the reissue application
 arose without any deceptive intention on the part of the applicant.
 

 2. This form paragraph is appropriate to use for a failure by
 applicant to comply with the requirement, as to any of pre-AIA 37 CFR
 1.175(a)(2) , 37 CFR 1.175(b)(1) , or
 37 CFR
 1.175(b)(2) .
 

 3. Form paragraph 14.14 must follow. 
 
 
 
 II. THE REISSUE OATH/DECLARATION MUST COMPLY WITH PRE-AIA 37 CFR 1.63 The Office of Patent Application Processing (OPAP) should review the
 reissue oath/declaration for compliance with pre-AIA 37 CFR 1.63 ; thus, the
 examiner is not required to do such review.
 

 The reissue oath/declaration must include the
 averments required by pre-AIA 37 CFR 1.63(a) and (b) ,
 e.g., that applicants for reissue
 

 
 (A) have reviewed and understand the contents of the
 specification, including the claims, as amended by any amendment specifically
 referred to in the oath/declaration; 
 

 (B) believe the named inventor or inventors to be
 the original and the first inventor or inventors of the subject matter which is
 claimed and for which a patent is sought; and 
 

 (C) acknowledge the duty to disclose to the Office
 all information known to the person to be material to patentability as defined in
 37 CFR
 1.56 . See also the discussion regarding the requirements of
 an oath/declaration beginning at MPEP § 602 .
 

 
 See MPEP §
 1414.03 for a discussion of the requirements for a
 supplemental reissue oath/declaration. 
 

 Depending on the circumstances, either form PTO/SB/51,
 Reissue Application Declaration By The Inventor, or form PTO/SB/52, Reissue
 Application Declaration By The Assignee, may be used to prepare a declaration in a
 reissue application. 
 

 

 

 

 

 

 

 

 
 1414.03 Supplemental Reissue Oath/Declaration [R-08.2017]
 I. REISSUE APPLICATION FILED ON OR AFTER SEPTEMBER 16, 2012 [Editor Note: See subsection II, below, for reissue applications filed
 before September 16, 2012.] 

 Pursuant to 37 CFR 1.67(a) , the applicant may
 submit an inventor's oath or declaration meeting the requirements of
 37 CFR
 1.63 , 1.64 , or 1.162 to
 correct any deficiencies or inaccuracies present in an earlier-filed inventor's oath
 or declaration.
 

 For applications filed on or after September 16, 2012, if additional
 defects or errors are corrected in the reissue after the filing of the reissue oath
 or declaration, a supplemental reissue oath or declaration is not 
 required. However, where all errors previously identified in the reissue
 oath/declaration are no longer being relied upon as the basis for reissue, the
 applicant must explicitly identify on the record an error being relied upon as the
 basis for reissue (e.g., in the remarks accompanying an amendment). See
 37 CFR
 1.175(d) . Identification of the error must be conspicuous and
 clear, and must comply with 35 U.S.C. 251 . 
 

 II. REISSUE APPLICATION FILED BEFORE SEPTEMBER 16, 2012 [Editor Note: See subsection I, above, for reissue applications filed on or
 after September 16, 2012.] 

 For applications filed before September 16, 2012, if
 additional defects or errors are corrected in the reissue after the filing of the
 application and the original reissue oath or declaration, a supplemental reissue
 oath/declaration must be filed, unless all additional errors corrected are spelling,
 grammar, typographical, editorial or clerical errors which are not errors under
 pre-AIA 35
 U.S.C. 251 (see MPEP § 1402 ). In other words, a
 supplemental oath/declaration is required where any “error” under pre-AIA 35 U.S.C.
 251 has been previously corrected, or is being corrected at the
 time the supplemental reissue oath/declaration is submitted, and the error was not
 covered by a previously filed reissue oath/declaration. 
 

 The supplemental reissue oath/declaration must state
 that every error which was corrected in the reissue application not covered by the
 prior oath(s)/declaration(s) submitted in the application arose without any deceptive
 intention on the part of the applicant.
 

 An example of acceptable language is as follows: 

 
 
 "Every error in the patent which was corrected in the present
 reissue application, and is not covered by the prior declaration submitted in
 this application, arose without any deceptive intention on the part of the
 applicant."
 
 
 
 

 
 A supplemental reissue oath/declaration will not be
 effective for any errors which are corrected by a filing made after the execution of
 the supplemental reissue oath/declaration, unless it is clear from the record that
 the parties executing the document were aware of the nature of the correction when
 they executed the document. Further, a supplemental reissue oath/declaration with an
 early date of execution cannot be filed after a correction made later in time, to
 cover the correction made after the execution date. This is so, even if the
 supplemental reissue oath/declaration states that all errors up to the filing of the
 supplemental reissue oath/declaration oath or declaration arose without any deceptive
 intention on the part of the applicant.
 

 Form PTO/SB/51S, “Supplemental Declaration For Reissue
 Patent Application To Correct ‘Errors’ Statement ( 37 CFR
 1.175 ),” may be used to prepare a supplemental reissue
 declaration. Form PTO/SB/51S serves to indicate that every error in the patent that
 was corrected in the reissue application, but was not covered by a prior reissue
 oath/declaration submitted in the reissue application, arose without any deceptive
 intention on the part of the applicant. 
 

 In the event that the applicant for a reissue
 application is required to file a supplemental reissue oath/declaration that also
 includes a specific statement of the error being corrected by reissue in accordance
 with pre-AIA 37
 CFR 1.175(c) , as discussed in subsection A. below, applicant
 must also include in the supplemental declaration language equivalent to the “Every
 error …” language in the example of acceptable language set forth above. Therefore,
 if either form PTO/SB/51, “Reissue Application Declaration By The Inventor,” or form
 PTO/SB/52, “Declaration By The Assignee” (see MPEP § 1414 ) is used for the purpose
 of filing such supplemental reissue oath/declaration, the form must be completed so
 that it is clear that the supplemental reissue oath/declaration addresses all errors
 corrected subsequent to the date upon which the last previous reissue
 oath/declaration (whether original or supplemental) was filed. For example, the form
 could be completed by specifying the date upon which the reissue application was
 originally filed, the reissue application number, and the date(s) of every amendment
 filed subsequent to the date upon which the last reissue oath/declaration (whether
 original or supplemental) was filed. Any manner of completing the form so that
 affiant/declarant unambiguously states that every error corrected subsequent to the
 filing of the last filed reissue oath/declaration (whether original or supplemental)
 arose without deceptive intent will be acceptable. It will not be acceptable for a
 newly filed supplemental oath/declaration to simply refer to the reissue application
 as filed, even though the new oath/declaration may be submitted after an amendment. 
 

 A. When An Error Must Be Specifically Identified In The Supplemental
 Oath/Declaration In the supplemental reissue oath/declaration, there
 is no need to specifically identify any additional error which is
 relied upon to support the reissue application if : 
 

 
 (A) an error to support a reissue has been
 previously and properly stated in a reissue oath/declaration in the
 publication; and
 

 (B) that error is still being corrected in the
 reissue application.
 

 
 If applicant chooses to state any further error at
 this point (even though such is not needed), the examiner should not review the
 statement of the further error.
 

 The supplemental reissue oath/declaration
 must specifically identify an error which is relied upon
 to support the reissue application only where one of the following is
 true :
 

 
 (A) the prior reissue oath/declaration failed to
 state an error;
 

 (B) the prior reissue oath/declaration attempted
 to state an error but did not do so properly; or
 

 (C) all errors under pre-AIA 35 U.S.C.
 251 stated in the prior reissue oath(s)/declaration(s)
 are no longer being corrected in the reissue application. 
 

 B. Supplemental Oath/Declaration Must Be Submitted Before
 Allowance The supplemental oath/declaration in accordance
 with pre-AIA
 37 CFR 1.175(b)(1) must be submitted before allowance. See
 MPEP §
 1444 for a discussion of the action to be taken by the
 examiner to obtain the supplemental oath/declaration in accordance with
 pre-AIA
 37 CFR 1.175(b)(1) , where such is needed. 
 

 Where applicant seeks to correct an error after
 allowance of the reissue application, a supplemental reissue oath/declaration must
 accompany the requested correction stating that the error(s) to be corrected arose
 without any deceptive intention on the part of the applicant. The supplemental
 reissue oath/declaration submitted after allowance will be directed to the error
 applicant seeks to correct after allowance. This supplemental oath/declaration
 need not cover any earlier errors, because all earlier errors should have been
 covered by a reissue oath/declaration submitted before allowance. 
 

 C. Supplemental Oath/Declaration In Broadening Reissue A broadening reissue application must be applied
 for by all of the inventors (patentees), that is, the original reissue
 oath/declaration must be signed by all of the inventors. See MPEP § 1414 . If
 a supplemental oath/declaration in a broadening reissue application is
 subsequently needed in the application in order to fulfill the requirements of
 pre-AIA 37
 CFR 1.175 , the supplemental reissue oath/declaration must be
 signed by all of the inventors. In re Hayes, 53 USPQ2d 1222,
 1224 (Comm’r Pat. 1999) (“ 37 CFR 1.175(b)(1) , taken in
 conjunction with Section 1.172 , requires a supplemental declaration be
 signed by all of the inventors. This is because all oaths or declarations
 necessary to fulfill the rule requirements in a reissue application are taken
 together collectively as a single oath or declaration. Thus, each oath and
 declaration must bear the appropriate signatures of all the inventors.”).
 

 If a joint inventor refuses or cannot be found or
 reached to sign a supplemental oath/declaration, a supplemental oath/declaration
 listing all the inventors, and signed by all the available inventors may be filed
 provided it is accompanied by a petition under 37 CFR 1.183 , along with the
 petition fee, requesting waiver of the signature requirement of the nonsigning
 inventor. 
 

 If a sole inventor refuses or cannot be found or
 reached to sign a supplemental oath/declaration, a supplemental oath/declaration
 listing the sole inventor, and signed by the assignee or a party who otherwise
 shows sufficient proprietary interest in the matter justifying such action may be
 filed provided it is accompanied by a grantable petition under 37 CFR
 1.183 , along with the petition fee, requesting waiver of the
 signature requirement of the nonsigning inventor. 
 

 

 [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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