How to Withdraw & Reissue a Patent

by Tom Streissguth

Patents issued by the US Patent and Trademark Office protect original inventions from infringement for a period of 20 years. If you have applied for a patent, federal law allows you to correct it, if necessary, by withdrawing the patent and requesting to have it reissued.

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Withdrawal of Application

An applicant may petition to withdraw a patent application before the USPTO issues the patent; the agency will not grant a withdrawal after the issuance. If the applicant has already paid the issue fee for the original application, then he can only withdraw that application under three circumstances: one or more claims in the application are unpatentable; the applicant expressly abandons the application; or the applicant requests a continued examination.

Petition for Withdrawal and Deferment

A patent applicant must file a petition for withdrawal and pay a filing fee to the USPTO in order to withdraw a patent. Filing a petition for withdrawal will not necessarily prevent the patent office from publishing application information. An alternative to withdrawal would be a petition for deferment of the patent, which also must be submitted with valid grounds and a filing fee. This delays the issuance of the patent, but does not prevent it.

Request for Reissuance

The original applicant for a patent may request that the USPTO reissue the patent. The applicant must provide valid grounds for doing so; there may be an error in the original patent drawing, for example, or the applicant may need to amend some part of the application. The "patentee" -- the party that received the patent -- also may wish to change his claim of rights in the invention, and either expand or reduce the scope of those rights. There is a two-year limit from the original patent issue date for any request to expand the scope. A patentee may also request that the USPTO reissue several new patents to replace a single original patent.

Surrender and Reexamination

The USPTO does not require that an applicant withdraw the original patent when requesting a reissue. No separate withdrawal or surrender petition is required while the decision on reissuing the patent is pending. There must be at least one error in the original patent in order for the agency to reissue the patent. If the agency does not approve the reissuance, then the patent remains in effect. A patentee seeking to submit a new patent application for the same invention would have to petition for reexamination of the original patent in order to have it nullified.