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1403 Diligence in Filing [R-2] - 1400 Correction of Patents
1403 Diligence in Filing [R-2]
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).
The fourth paragraph of 35 U.S.C. 251 states:
"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."
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.3rd 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 filing 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(e). See MPEP § 1410.01.
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