Allowance, issue, reissue and correction of patents
This area tests what can still be done after a notice of allowance, and which tool fixes an issued patent: a certificate of correction, a reissue or a statutory disclaimer. Hold onto one idea: anything that changes claim scope needs reissue, broadening needs it within two years, and the issue fee date closes most doors before grant.
Appeals, petitions, issue and post-issuance6 min read5 sections
The notice of allowance states the issue fee and any publication fee, due within three months and never extendable; a deadline on a weekend or federal holiday moves to the next business day (37 CFR 1.311(a); MPEP 1306). If the inventor's declaration was postponed, it must arrive no later than the issue fee (MPEP 1303). A missed issue fee abandons the application, and revival under 37 CFR 1.137 requires paying it.
After allowance no amendment is entered as of right. A 1.312 amendment must be filed no later than the issue fee payment and is entered only on the examiner's recommendation with supervisory approval, unless it merely corrects formal matters or cancels claims; the remarks must explain why it is needed, why no further search is required, why the claims are patentable and why they were not presented earlier (MPEP 714.16).
| Situation | How to stop or reopen issue |
|---|---|
| Issue fee not yet paid | File an RCE (no petition needed), or petition under 1.313(a), or let the application lapse after filing a continuation |
| Issue fee paid | Petition under 1.313(c): unpatentability with statement and amendment, RCE, or express abandonment for a continuing application |
| Office's own initiative after payment | Only Office mistake, 1.56 violation or illegality, unpatentability, or interference/derivation (1.313(b)) |
A 1.313 petition works only if granted before the issue date. An IDS filed after payment of the issue fee is not considered unless the application is withdrawn from issue (MPEP 609.04(b)). Issuance may be deferred under 37 CFR 1.314, but usually for one month at most.
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A reissue corrects an error that makes the patent wholly or partly inoperative or invalid through a defective specification or drawing or by claiming more or less than the patentee was entitled to (35 U.S.C. 251). Spelling and clerical fixes alone are not reissue errors. Adding narrower dependent claims while keeping every original claim is a proper error (In re Tanaka); failing to file a divisional for non-elected claims is not (MPEP 1402).
Reissue files are public and announced in the Official Gazette; examination generally waits two months unless a 1.182 petition is granted (MPEP 1430, 1441). The original patent stays in force until a reissue issues, so an abandoned reissue leaves it untouched; a continuation reissue filed before the first reissue issues postpones surrender (MPEP 1451, 1460). The reissue expires when the original would have.
