Expediting the Issuance of a Certificate of Correction for a United States Patent

By: Richard Neifeld, Neifeld IP Law, PC

It is a little known fact that defectively issued patents are not self correcting. That is, proving that the PTO made a printing mistake does not perfect rights that should be but are not present in the patent due to the printing error. For example, if the PTO fails to print allowed claims, those claims can not be enforced. Cf. Southwest Software, Inc. v. Harlequin Inc., ___ F.3d ___, 56 USPQ2d 1161, 1171 (Fed. Cir. 2000)("... for causes arising after the PTO issues a certificate of correction, the certificate of correction is to be treated as part of the original patent--i.e., as if the certificate had been issued along with the original patent. By necessary implication, for causes arising before its issuance, the certificate of correction is not effective.") Whatever, the USPTO printing error, the patent has legal effect as issued - - until a certificate of correction is published by the USPTO changing what is issued.

The USPTO does not review patents for printing errors. Therefore, that job, along with requesting a certificate of correction, are left up to the patentees.

My experience is that obtaining a certificate of correction in the normal course can take up to year. In this context, the in the normal course means preparing the certificate and filing it in the USPTO with a request for the USPTO to issue the certificate. However, that process is too slow whenever the patent is in play.

There is, however, a procedure for expediting issuance of a certificate of correction. The procedure is to file a one paragraph paper stating a reason why a COC needs to be expedited along with the request for the COC, and to file those papers at the USPTO's Certificate of Corrections Branch in the Publications Division, now located at Crystal Park 3, Room 922 (or to FAX those papers to that office). If the supervisor of that Branch agrees that there is a good reason to expedite the COC, they will process your COC out of turn as soon as they get the patent's file. The clerks in the Certificate of Corrections Branch tell me that, currently, expedited COCs are issuing in between 3 and 4 weeks after they are requested.