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Patent Correction: Navigating the Confusing Terrain of Broadening Reissue

By Edward Van Gieson and Paul Stellman

There are times when a patent owner may discover that an issued patent does not claim everything that the patent should have covered. When such defects are discovered, one strategy a patent owner may wish to consider is filing a request with the U.S. Patent and Trademark Office (“USPTO”) for a broadened reissue of a U.S. patent to enlarge the scope of the claims of the original patent. The patent statute permits many types of errors in an issued patent to be corrected by filing a reissue application. See 35 U.S.C. ' 251. One type of error that is correctable by reissue application occurs when a patentee: “through error and without any deceptive intention ' claim[ed] ' more or less than he had a right to claim in the patent.” Id. The statute thus permits reissue claims having a different scope (including a broader scope) than the original patent. However, a request for a broadening reissue that enlarges the scope of the claims must be filed within two years of the issue date of the original patent. Id.

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