Master broadening vs. narrowing reissue applications (35 U.S.C. 251), the 2-year broadening deadline, the recapture doctrine, and Certificates of Correction (35 U.S.C. 254/255).
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MPEP-1400 • #q0734
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According to the MPEP, if a terminal disclaimer was filed in a patent application to overcome a nonstatutory double patenting rejection, but the relevant claims are subsequently canceled or shown to be patentably distinct from the reference claims, how may the terminal disclaimer be withdrawn?
ℹ️ AI-generated, model-checked practice question citing MPEP Ninth Edition, Rev. 01.2024 (Nov 2024). Each question is checked against MPEP source text by AI; always verify via the cited section.
MPEP-1400 • #q0769
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Which of the following statements correctly describes the rule regarding the withdrawal of a recorded terminal disclaimer?
ℹ️ AI-generated, model-checked practice question citing MPEP Ninth Edition, Rev. 01.2024 (Nov 2024). Each question is checked against MPEP source text by AI; always verify via the cited section.
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How MPEP 1400 Reissue & Correction Is Tested on the 2026 Patent Bar Exam
MPEP Chapter 1400 (Correction of Patents) tests Certificates of Correction (35 U.S.C. 254 for USPTO mistakes and 35 U.S.C. 255 for applicant mistakes of a clerical, typographical, or minor character that do not involve new matter or require reexamination), statutory disclaimers (35 U.S.C. 253), and Reissue Applications (35 U.S.C. 251).
For Reissue under 35 U.S.C. 251 (MPEP §§ 1402–1412), the patent must be deemed wholly or partly inoperative or invalid by reason of a defective specification or drawing, or by reason of the patentee claiming more or less than the patentee had a right to claim. Know the 2-year broadening rule: a broadening reissue (which enlarges the scope of the claims in ANY respect, even if it narrows in another respect) must be filed within two years from the grant of the original patent.
Finally, master the Recapture Doctrine (MPEP § 1412.02): a reissue claim that broadens a claim by eliminating or broadening a limitation that was specifically added or argued during original prosecution to overcome a prior art rejection is barred under 35 U.S.C. 251 because deliberate surrender is not a correctable "error."
High-Yield MPEP Rev. 01.2024 Sections to Master
MPEP § 1402
Grounds for Filing a Reissue Application Under 35 U.S.C. 251
MPEP § 1412.02
Recapture of Cancelled Subject Matter in Reissue
MPEP § 1412.03
Broadening Reissue — Two-Year Statutory Rule & Intent to Broaden
MPEP § 1414
Content of Reissue Oath/Declaration (37 CFR 1.175) & Assignee Consent
What is considered a "broadening" reissue claim under MPEP § 1412.03?
Under MPEP § 1412.03, a reissue claim enlarges the scope of the claims of the patent if it is broader in ANY respect than the original patent claims, even though it may also be narrower in other respects (i.e., if any conceivable device would infringe the reissue claim without infringing any original patent claim).
Can an assignee file a broadening reissue application without the inventor’s signature after the AIA?
Yes. For reissue applications filed on or after September 16, 2012 (post-AIA 35 U.S.C. 251), the assignee of the entire interest may sign the reissue oath or declaration even if the application seeks to broaden the claims.
Can failure to timely file a divisional application before the parent issues be fixed via reissue?
No. Under MPEP § 1402 (citing In re Watkinson and In re Orita), failure to timely file a divisional application in response to a restriction requirement prior to issuance of the parent patent is not an "error" correctable by reissue under 35 U.S.C. 251.