Master broadening vs. narrowing reissue applications (35 U.S.C. 251), the 2-year broadening deadline, the recapture doctrine, and Certificates of Correction (35 U.S.C. 254/255).
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According to MPEP § 1480, 'A third-party request for a certificate of correction must not be filed by the USPTO patent electronic filing system.' Additionally, the USPTO does not inform third parties of whether it intends to issue or deny a certificate of correction in response to such a submission.
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According to MPEP § 1455 (Section II), the specifications of reissue patents are printed in a manner to show changes over the original patent text by enclosing any material omitted by the reissue in heavy brackets [ ] and printing material added by the reissue in italics.
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When a terminal disclaimer is filed to overcome a nonstatutory double patenting rejection over a reference patent, which of the following accurately describes the enforceability requirement for any patent granted on the instant application?
According to MPEP Chapter 1400 (specifically regarding terminal disclaimers filed over a reference patent), the owner must agree that any patent granted on the instant application shall be enforceable only for and during such period that it and the reference patent are commonly owned. This agreement runs with the patent and is binding upon the grantee, its successors, or assigns.
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Under 37 CFR 1.172(a), an assignee must establish its ownership interest in a patent to support the consent required for a reissue application. According to MPEP Form Paragraph 14.16, which of the following correctly describes how this ownership interest is established?
According to MPEP Form Paragraph 14.16, the assignee's ownership interest is established by either: (a) filing in the reissue application evidence of a chain of title from the original owner to the assignee, or (b) specifying in the record of the reissue application where such evidence is recorded in the Office (e.g., reel and frame number, etc.).
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If a request under 37 CFR 1.48 to correct inventorship is filed after a patent has already issued, how will the USPTO treat the request, and who has the authority to decide it?
According to MPEP text (Form Paragraphs 10.14/10.15 and examiner notes), when a request under 37 CFR 1.48 is filed after a patent has issued, it is treated as a petition to correct inventorship under 37 CFR 1.324. Petitions to correct inventorship of an issued patent are decided by the Supervisory Patent Examiner (SPE).
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According to USPTO practice regarding reissue applications, under which of the following circumstances may a broadened claim be presented after two years from the grant date of the original patent?
According to the MPEP text, a broadened claim can be presented after two years from the grant of the original patent in a broadening reissue application which was filed within two years from the grant. Furthermore, where any intent to broaden is unequivocally indicated in the reissue application within two years from the patent grant, a broadened claim can subsequently be presented in the reissue after the two-year period.
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Under 37 CFR 1.178(b) and MPEP § 1418, individuals associated with the filing and prosecution of a reissue application have a continuing obligation to timely apprise the USPTO of any prior or concurrent proceeding in which the patent is or was involved. Which of the following lists the proceedings that fall under this disclosure obligation?
According to 37 CFR 1.178(b) as cited in MPEP § 1418, individuals associated with the filing and prosecution of a reissue application have a continuing obligation to timely apprise the Office of any prior or concurrent proceeding in which the patent is or was involved. These proceedings include any trial before the Patent Trial and Appeal Board, interferences, reissues, reexaminations, supplemental examinations, and litigation.
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Which of the following statements correctly describes the effect of a terminal disclaimer filed in a parent application on a subsequent continuing application?
According to the MPEP, a terminal disclaimer filed in a parent application normally has no effect on a continuing application claiming filing date benefits of the parent under 35 U.S.C. 120 (unless by its terms it extends to continuing applications and a copy is filed in the continuing application). However, a terminal disclaimer filed in a parent application to obviate a nonstatutory double patenting rejection does carry over to a continued prosecution application (CPA) filed under 37 CFR 1.53(d).
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How MPEP 1400 Reissue & Correction Is Tested on the 2026 Patent Bar Exam
MPEP Chapter 1400 (Correction of Patents) tests Certificates of Correction (35 U.S.C. 254 for USPTO mistakes and 35 U.S.C. 255 for applicant mistakes of a clerical, typographical, or minor character that do not involve new matter or require reexamination), statutory disclaimers (35 U.S.C. 253), and Reissue Applications (35 U.S.C. 251).
For Reissue under 35 U.S.C. 251 (MPEP §§ 1402–1412), the patent must be deemed 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 a right to claim. Know the 2-year broadening rule: a broadening reissue (which enlarges the scope of the claims in ANY respect, even if it narrows in another respect) must be filed within two years from the grant of the original patent.
Finally, master the Recapture Doctrine (MPEP § 1412.02): a reissue claim that broadens a claim by eliminating or broadening a limitation that was specifically added or argued during original prosecution to overcome a prior art rejection is barred under 35 U.S.C. 251 because deliberate surrender is not a correctable "error."
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What is considered a "broadening" reissue claim under MPEP § 1412.03?
Under MPEP § 1412.03, a reissue claim enlarges the scope of the claims of the patent if it is broader in ANY respect than the original patent claims, even though it may also be narrower in other respects (i.e., if any conceivable device would infringe the reissue claim without infringing any original patent claim).
Can an assignee file a broadening reissue application without the inventor’s signature after the AIA?
Yes. For reissue applications filed on or after September 16, 2012 (post-AIA 35 U.S.C. 251), the assignee of the entire interest may sign the reissue oath or declaration even if the application seeks to broaden the claims.
Can failure to timely file a divisional application before the parent issues be fixed via reissue?
No. Under MPEP § 1402 (citing In re Watkinson and In re Orita), failure to timely file a divisional application in response to a restriction requirement prior to issuance of the parent patent is not an "error" correctable by reissue under 35 U.S.C. 251.