- In re Kostik 23-1437.pdf

• Proper comparator for determining whether a reissue claim broadens claim scope under 35 U.S.C. § 251(d).: In assessing broadening under § 251(d), the inquiry compares the reissue claim’s scope to the actual scope of the original claims as written and properly construed, not to the inventors’ subjective “intended” claim scope.
• Test for whether a reissue claim is broader than an original claim.: A reissue claim is broader if it encompasses at least one conceivable process or apparatus that would not have infringed any claim of the original patent.

- Merck Sharp & Dohme 23-2254.pdf [NEEDS_REVIEW]

• Effect of reissue on PTE eligibility/measurement where the original patent is surrendered and replaced by a reissue patent.: The fact that the original patent is surrendered and no longer enforceable as such does not prevent using the original patent’s issue date to calculate PTE, because the reissue patent inherits the unexpired term of the original patent and § 156 extends that term to restore time lost to FDA review.