This Note is the first scholarship to fully investigate the history and evolution of certificates of correction, which are issued to correct errors in patents. The U.S. Patent and Trademark Office has a long history of issuing such certificates, stretching all the way back to the nineteenth century, but no one has yet researched how the statute authorizing certificates of correction came to be what it is today. This Note explains how certificates of correction historically were essentially the more efficient equivalent of a reissued patent. This historical analysis, I argue, can be helpful in interpreting the current statute.

I then use the history of certificates of correction as a springboard to discuss how such certificates are treated today, particularly with respect to their retroactive application. Currently, the leading case on the issue—Southwest Software, Inc. v. Harlequin Inc.—denies that certificates of correction have any retroactive effect, a decision based almost solely on the plain text of the statute (as the Federal Circuit claimed there was a lack of legislative history). This Note provides the first analysis of the harmful effects such a policy can have and then suggests several different approaches courts can take to avoid those effects. Primarily, Southwest Software should be reconsidered in light of the statute’s long history identified herein. Instead of refusing to allow certificates to have any retroactive effect, courts should apply the same retroactivity standard they do to reissued patents and reexamination certificates.

Even if Southwest Software is not reconsidered, though, this Note suggests alternative approaches, such as refusing to extend the case to certain factual circumstances I describe that can make nonretroactivity particularly harmful, or using the doctrine of judicial correction to fix the patent retroactively. The latter approach has been adopted in some cases but questioned in others, and this Note argues that it should be given broader application in this context. Finally, as a last resort this Note urges Congress to amend the certificate of correction statute to parallel the language found in the reissued patent statute to allow retroactive application in at least some circumstances.