Appeal No. 2000-0132
Application No. 08/934,791
F.2d at 1280, 193 USPQ at 148. According to Orita, there is no
correctable error in failing to prosecute the divisional
application on the non-elected inventions identified by the
examiner in the restriction requirement. Id.
In the present case, no formal restriction requirement of
claims drawn to a combination of a separating agent and a
chromatographic column was ever imposed by the examiner, or
acquiesced by the appellants, since they were not presented in
the appellants’ original application. Thus, it cannot be argued
that the appellants’ failure to file a divisional application to
such subject matter was a deliberate act and not an error under
Section 251. Compare In re Doyle, 293 F.3d 1355, 63 USPQ2d 1161
(Fed. Cir. 2002).
It is important to recognize that Section 251 is a remedial
statute which must be interpreted liberally. Weiler, 790 F.2d at
1579, 229 USPQ at 675. “Although attorney error is not an open
invitation to reissue in every case . . . the purpose of the
reissue statute is to avoid forfeiture of substantive rights due
to error made without intent to deceive.” Scripps Clinic
& Research Found. v. Genentech, Inc., 927 F.2d 1565, 1575, 18
USPQ2d 1001, 1009 (Fed. Cir. 1991). Accordingly, we decline to
extend any per se or mechanical rule against reissue where the
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