미국특허 재발행을 통한 권리범위확장에 관한 소고

A study on broadening protective scope of U.S. Patents by reissue application

A reissue application can be filed at the U.S. Patent Office when an issued patent, through error, is considered to be inoperative or invalid, and thus the reissue is utilized to correct substantive errors, not just typographic errors. While there are many countries or jurisdictions which allow the originally-issued patents to be corrected, it should be noted the U.S. Patent Law even allows the orignal protective scope of originally-issued patents to be broadened by the reissue application. In order to broaden the orignal protective scope of patents, any reissue application must be filed within two years from the grant of the original patent. Also, any broadening reissue application will not be granted to ‘recapture’ claimed subject matter which was surrendered in an application to obtain the original patent. The ‘recapture’ is a limit regulated in the statute, and the recapture rule or doctrine arises when an applicant for reissue attempts to obtain broader claims which have the same scope or a scope larger than claims cancelled or surrendered during prosecution of the original application. Since the reissue of the U.S. Patent Law has many unique characteristics, it is meaningful to study and review the relevant statutes and recent developments of case laws.