Defective Patents

A defective patent is one that, through mistakes or omissions but without misleading intention, provides you with more or less exposure than your invention justifies. In a situation where you missed to claim a prior application as the priority date or you claimed the invention too narrowly. The only way to correct a defective patent is by filing a reissue application. It means that your defective patent is cancelled and replaced by a corrected one. Reissues are subject to the following rules:

• Only the patent owner, or the inventor with the approval of the patent owners, can file an application for reissue.
• An application that seeks to broaden the coverage of the patent must be filed within two years from the issue date of the original patent and bear the signature of the inventor.
• A reissue application filed more than two years after the issue date of the original patent may be rejected for lack of diligence if you can’t provide a reasonable excuse for the delay.

With respect to a reissue application, you propose to submit the patent you just received, alleging that it’s completely or partially inoperative, and ask for a fresh one. All the claims in the reissue application, comprising those copied from the original patent, are examined and may be discarded on new reasons. You also jeopardize a third party submitting info that concerns the patentability of your claims. To make matters worse, you could end up with a weak reissued patent.

The submission of your original patent doesn’t take effect until the grant of the reissue. So if you dislike the way the reissue application is moving, you can discard the patent and maintain your original, unedited patent.

Reissue applications are likely to be trickier than original applications because of the extra complications of having to confess errors and probably needing to evoke a previously overlooked patent coverage.