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Question Concerning Claim Priority in an Already Issued Patent
Posted by Anonymous . updated on 6/3/2011
Here's the situation. Provisional filed. Nonprovisional #1 properly claims priority to provisional. Nonprovisional #2 was meant to claim priority as a continuation to Nonprovisional #1. Unfortunately, the original lawyers made a mistake and didn't claim priority to Nonprovisional #1. They corrected the priority mistake within 4 months (which is proper), but the PTO failed to recognize this. Subsequently, Nonprovisional #2 has issued and Nonprovisional #1 was rejected.
Questions: How can we get Nonprovisional #2 to get the priority of Nonprovisional #1 even though Nonprovisional #2 has issued? Will (or, is there a way for) Nonprovisional #2 to get priority to the provisional as well?
Will a certificate of correction work here even though Nonprovisional #2 has issued? Can a petition for unintentionally delayed priority claim be filed? Do we need to do a reissue?
Also, as an additional wrinkle, a Nonprovisional #3 (a divisional) is pending which claims priority to Nonprovisional #2 (before it issued). If we fix the priority problems with Nonprovisional #2, will Nonprovisional #3 get the benefit of the priority date of the original provisional?
Thanks.
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