The oath or declaration in a reissue application

From Patentbarquestions

26. When, in accordance with the patent laws, rules and procedures as related in the MPEP,

is a supplemental oath or declaration treated as an amendment under 37 CFR 1.312?

(A) When filed in a nonprovisional application after the Notice of Allowance has been mailed.

(B) When filed in a reissue application at any point during the prosecution.

(C) When filed in a nonprovisional application after the payment of the Issue Fee.

(D) When filed in a reissue application after the Notice of Allowance has been mailed.

(E) (A) and (D).

26. ANSWER: (D) is the most correct answer. MPEP § 714.16, third paragraph, states “a supplemental reissue oath or declaration is treated as an amendment under 37 CFR 1.312 because the correction of the patent which it provides is an amendment of the patent, even though no amendment is physically entered into the specification or claim(s).” Answer (A) is incorrect because a supplemental oath or declaration is not treated as an amendment under 37 CFR 1.312 except when submitted in a reissue. See MPEP § 603.01. Answer (B) is incorrect because a supplemental oath or declaration in a reissue will be treated as an amendment under 37 CFR § 1.312 only if filed after allowance. Answer (C) is incorrect because amendments filed after the date the issue fee has been paid are no longer permitted under 37 CFR § 1.312. (E) is wrong because (A) is correct.

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Supplemental Oath (10.03.26a)

Oct ‘03 AM Q#26 Question when is a supplemental oath or declaration treated as an amendment?

Answer: After Notice of Allowance in reissue application.

714.16 Amendment After Notice of Allowance, 37 CFR 1.312

[...]

With the exception of a supplemental oath or declaration submitted in a reissue, a supplemental oath or

declaration is not treated as an amendment under 37 CFR 1.312. See MPEP § 603.01. A supplemental reissue

oath or declaration is treated as an amendment under 37 CFR 1.312 because the correction of the patent

which it provides is an amendment of the patent, even though no amendment is physically entered into the

specification or claim(s). Thus, for a reissue oath or declaration submitted after allowance to be entered,

the reissue applicant must comply with 37 CFR 1.312 in the manner set forth in this section.