Army Had Received Two Previous Dead Patents

It gets worse...

It turns out there is more to the story of U.S. Patent No. 7,604,811, the Army patent that issued this week with an expiration date in 2004.  Incredibly, the '811 patent is the third pre-expired patent to issue from this same chain.

As explained in the previous post, the '811 patent claims priority back to 06/590,308, which was filed March 16, 1984.  The '308 application served as a priority basis for many other issued patents, including:

• U.S. Patent No. 6,844,010, filed July 18, 2000; issued January 18, 2005.

• U.S. Patent No. RE40,786, issued June 23, 2009 as a reissue of U.S. Patent 5,762,965, which was filed February 9, 1996.
  

Thus, both of these patents also expired in March 2004, which was prior to their issuance by 10 months and 5 years, respectively.

The facts here show that the '811 fiasco was no fluke. As was done with the '811 prosecution, while prosecuting the '010 patent the Army similarly filed a terminal disclaimer to circumvent a double-patenting rejection. In April 2004.  A month after the patent's expiration date.  (Another note on '811 -- it almost was saved with 550 days of Patent Term Adjustment, except there was over 600 days of patentee delay that offset it)

And like the '811 prosecution, the '786 reissue proceedings included substantial argument after the March 2004 expiration date (i.e., nine amendments and an RCE).

If that's not enough, there is also this piece of bad news for the Army: contrary to what I supposed in the previous post, you cannot use a reissue patent to delete a priority claim in order increase the patent's term.  MPEP 1405 makes this quite clear ("[term] cannot be extended through the filing of a reissue"), as does the language of 35 USC 251, which only allows a reissued patent for "the unexpired part of the term of the original patent."  In other words, there does not appear to be any way to resurrect these patents, even if they don't rely on any subject matter disclosed in the 1984 application.

Simply unbelievable.

[10/22 7:44PM UPDATE: There's more: the Army paid the four-year maintenance fee on the '010 patent in February 2008.  Should the PTO give a refund?]