§ 252. — Effect of reissue.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 35USC252]
TITLE 35--PATENTS
PART III--PATENTS AND PROTECTION OF PATENT RIGHTS
CHAPTER 25--AMENDMENT AND CORRECTION OF PATENTS
Sec. 252. Effect of reissue
The surrender of the original patent shall take effect upon the
issue of the reissued patent, and every reissued patent shall have the
same effect and operation in law, on the trial of actions for causes
thereafter arising, as if the same had been originally granted in such
amended form, but in so far as the claims of the original and reissued
patents are substantially identical, such surrender shall not affect any
action then pending nor abate any cause of action then existing, and the
reissued patent, to the extent that its claims are substantially
identical with the original patent, shall constitute a continuation
thereof and have effect continuously from the date of the original
patent.
A reissued patent shall not abridge or affect the right of any
person or that person's successors in business who, prior to the grant
of a reissue, made, purchased, offered to sell, or used within the
United States, or imported into the United States, anything patented by
the reissued patent, to continue the use of, to offer to sell, or to
sell to others to be used, offered for sale, or sold, the specific thing
so made, purchased, offered for sale, used, or imported unless the
making, using, offering for sale, or selling of such thing infringes a
valid claim of the reissued patent which was in the original patent. The
court before which such matter is in question may provide for the
continued manufacture, use, offer for sale, or sale of the thing made,
purchased, offered for sale, used, or imported as specified, or for the
manufacture, use, offer for sale, or sale in the United States of which
substantial preparation was made before the grant of the reissue, and
the court may also provide for the continued practice of any process
patented by the reissue that is practiced, or for the practice of which
substantial preparation was made, before the grant of the reissue, to
the extent and under such terms as the court deems equitable for the
protection of investments made or business commenced before the grant of
the reissue.
(July 19, 1952, ch. 950, 66 Stat. 808; Pub. L. 103-465, title V,
Sec. 533(b)(2), Dec. 8, 1994, 108 Stat. 4989; Pub. L. 106-113, div. B,
Sec. 1000(a)(9) [title IV, Sec. 4507(8)], Nov. 29, 1999, 113 Stat. 1536,
1501A-566.)
Historical and Revision Notes
Based on Title 35, U.S.C., 1946 ed., Sec. 64 (R.S. 4916, amended May
24, 1928, ch. 730, 45 Stat. 732.)
The first paragraph follows the present section with some
rearrangement in language. The second paragraph adds new provisions for
the protection of intervening rights, the court is given discretion to
protect legitimate activities which would be adversely affected by the
grant of a reissue and things made before the grant of the reissue are
not subject to the reissue unless a claim of the original patent which
is repeated in the reissue is infringed.
Amendments
1999--Pub. L. 106-113 inserted ``substantially'' before
``identical'' in two places in first par.
1994--Pub. L. 103-465 amended second par. generally. Prior to
amendment, second par. read as follows: ``No reissued patent shall
abridge or affect the right of any person or his successors in business
who made, purchased or used prior to the grant of a reissue anything
patented by the reissued patent, to continue the use of, or to sell to
others to be used or sold, the specific thing so made, purchased or
used, unless the making, using or selling of such thing infringes a
valid claim of the reissued patent which was in the original patent. The
court before which such matter is in question may provide for the
continued manufacture, use or sale of the thing made, purchased or used
as specified, or for the manufacture, use or sale of which substantial
preparation was made before the grant of the reissue, and it may also
provide for the continued practice of any process patented by the
reissue, practice, or for the practice of which substantial preparation
was made, prior to the grant of the reissue, to the extent and under
such terms as the court deems equitable for the protection of
investments made or business commenced before the grant of the
reissue.''
Effective Date of 1999 Amendment
Amendment by Pub. L. 106-113 effective Nov. 29, 2000, and applicable
only to applications (including international applications designating
the United States) filed on or after that date, see section 1000(a)(9)
[title IV, Sec. 4508] of Pub. L. 106-113, as amended, set out as a note
under section 10 of this title.
Effective Date of 1994 Amendment
Amendment by Pub. L. 103-465 effective on date that is one year
after date on which the WTO Agreement enters into force with respect to
the United States [Jan. 1, 1995], with provisions relating to earliest
filed patent application, see section 534(a), (b)(3) of Pub. L. 103-465,
set out as a note under section 154 of this title.
Section Referred to in Other Sections
This section is referred to in sections 307, 316 of this title.
