Patent Law-Reissue Patents-Application of Public Use and Sale Bar: Section 102(b)

Patentee applied for an original patent, defining a shelving unit; the patent was issued twenty-two months subsequent to the date of application. Less than two months later, application for a reissue patent was filed, describing and claiming a change in the dimensions of a given surface from “greater than one-half’ to “greater than one-third” the height of a prescribed standard. The reissue patent was awarded eight months after the application for reissue. Patentee subsequently assigned the reissue to plaintiff corporation. Plaintiff brought suit for infringement, and defendant moved for summary judgment on the ground that the reissue was invalid because the claimed subject matter had been on sale and in public use more than one year prior to the filing of the reissue application. The district court denied the motion. On appeal to the Court of Appeals for the Seventh Circuit, sitting en bane, held, affirmed. The Patent Act of 1952 expressly provides that a broadened reissue patent may be applied for within two years of the grant of the original patent. The one-year public use bar was inapplicable in this case; therefore, the reissue in question could not be judged invalid as a matter of law. Union Asbestos & Rubber Co. v. Paltier Corp., 298 F.2d 48 (7th Cir.), cert. denied, 369 U.S. 865 (1962).