Recapture and Formality Issues Bog Down Important Cases
As shown in the charts above (click to enlarge images), we analyzed the 745 broadening patent reissues filed since 2005. A surprising 200 applications of the 745 were ultimately abandoned. While many of these applications may have been seeking to secure a claim scope that was precluded by prior art, it may also be that a significant number fell victim to the frustrations of reissue practice. The lowermost chart above factors out abandonments as a true conclusion, demonstrating that only 20% of broadened reissues are concluded within 3 years of filing. When compared to the special dispatch accorded to patent reexamination, these important applications clearly fare a great deal worse.
The data for narrowing reissues shows slightly better timeliness, perhaps due to the absence of recapture doctrine concerns. Data for narrowing reissues will be posted in the coming days.
I understand the PTO is considering creating a special unit for patent reissues, much like was done for patent reexamination. My guess is more reissue would be filed should these applications be treated with the importance they deserve.
If anything, the pendency problems plaguing patent reissue demonstrate the value of maintaining pending continuation applications.