BPAI Once Again Shoots Down Broadening Reissue
Patent reissue has been a recurring topic here as of late. More recently, the breadth of the recapture doctrine has been discussed. Earlier this year, I discussed ex parte Staats relative to a pending CAFC appeal, and the pending CAFC appeal of ex parte Tanaka.
While the main issue in ex parte Tanaka is whether or not the addition of narrower dependent claims via patent reissue can be said to correct an “error” pursuant to the reissue statute, Tanaka, to a lesser extent, also illustrates the danger of a generically worded reissue declaration. As the BPAI decision of last Friday once again emphasizes, (ex parte Matthew Howard Fronk et al.,) a proper broadening declaration must not only identify at least one error in the issued patent (made without deceptive intent), but must also unequivocally indicate an intention to broaden. More importantly, this unequivocal intent to broaden must be communicated to the USPTO by declaration only, within two years of original patent issuance.
Continue Reading Broadening Patent Reissue Requires Unequivocal Declaration Statement