Appeal No. 1998-0212 Page 15
Reissue Application No. 07/837,588
Orita, 193 USPQ 145.” (Paper No. 23 at 3.) The appellant
replies that the “claims do not seek to recapture nonelected
claims.” (Appeal Br. at 2.) We agree with the examiner.
“[N]ot every event or circumstance that might be labeled
‘error’ is correctable by reissue.” Weiler, 790 F.2d at 1579,
229 USPQ at 675. In particular, “the failure to file a
divisional application, regardless of the propriety of the
underlying restriction requirement, is not an error
correctable by reissue under 35 U.S.C. § 251.” In re
Watkinson, 900 F.2d 230, 231, 14 USPQ2d 1407, 1409 (Fed. Cir.
1990). "Finally, granting by reissue claims substantially
identical to those non-elected in [an original] application
... would be ignoring the proper restriction requirement set
forth in that application in which appellants acquiesced." In
re Orita, 550 F.2d 1277, 1280, 193 USPQ 145, 149 (CCPA 1977).
Here, the examiner concluded that the pending claims of
the ‘176 Application specified two independent and distinct
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