1509 Reissue of a Design Patent [R-11.2013]
The term of a design patent may not be extended by reissue. Ex parte Lawrence, 70 USPQ 326 (Comm’r Pat. 1946). If a reissue application is filed for the purpose of correcting the drawing of a design patent, either by canceling views, amending views or adding new views, the provisions of 37 CFR 1.173(b)(3) must be followed. All changes to the patent drawing shall be explained, in detail, beginning on a separate sheet accompanying the papers including the amendment to the drawing. A marked-up copy of any amended drawing figure, including annotations indicating the changes made, should be submitted. The marked-up copy must be clearly labeled as “Annotated Marked-up Drawings” and it must be presented in the amendment or remarks section that explains the change to the drawing.
A reissue application must be filed with a copy of all drawing views of the design patent regardless of whether certain views are being cancelled or amended in the reissue application. Inasmuch as the drawing is the primary means for showing the design being claimed, it is important for purposes of comparison that the reissue of the design patent shows a changed drawing view in both its canceled and amended versions and/or show a previously printed drawing view that has been canceled but not replaced. In addition to drawing views that are unchanged from the original design patent, the drawing in the reissue application may include the following views, all of which will be printed as part of the design reissue patent:
(1) CANCELED drawing view. Such a drawing view must be surrounded by brackets and must be labeled as “Canceled.” For example, FIG. 3 (Canceled). If a drawing view is canceled but not replaced the corresponding figure description in the reissue specification must also be cancelled. However, if a drawing view is cancelled and replaced by an amended drawing view the corresponding figure description in the reissue specification may or may not need to be amended.
(2) AMENDED drawing view. Such a drawing view must be labeled as “Amended.” For example, FIG. 3 (Amended). When an amended drawing view is present, there may or may not be a corresponding canceled drawing view. If there is such a corresponding canceled drawing view, the amended and canceled drawing views should have the same figure number. The specification of the reissue application need not indicate that there is both a canceled version and an amended version of the drawing view.
(3) NEW drawing view. Such a drawing view must be labeled as “New” For example, FIG. 5 (New). The new drawing view should have a new figure number, that is, a figure number that did not appear in the original design patent. The specification of the reissue application must include a figure description of the new drawing view.
If a drawing view includes both a cancelled and amended version, and the change in the amended version is for the purpose of converting certain solid lines to broken lines, the reissue specification must include a statement indicating the purpose of the broken lines.