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I introduced a claim limitation during patent prosecution to overcome prior art.

I would like to partially cancel this claim limitation in a reissue patent application.

Will the recapture doctrine still apply and prevent me from even partially cancelling the claim limitation?

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1 Answer 1

There is a section of the Manual of Patent Examining Procedure (MPEP) that covers this.

1412.02 Recapture of Canceled Subject Matter

A reissue will not be granted to "recapture" claimed subject matter which was surrendered in an application to obtain the original patent.

It does go on to list a three-part test to see if this applies. It may be possible to add a claim that broadens or removes the limitation in question as long as there is some other significant narrowing in another aspect.

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