Appeal No. 2001-2689
Application No. 09/215,021
claims originally presented in appellant’s patent can
be reissued more than two years after the patent with
claims directed to structural claims. The question is
whether the structural claims of the reissue
application are broader than the means-plus-function
claims of the original patent.
The examiner cites Tillotson, Ltd. v. Walbro Corp., 831 F.2d
1033, 1037 n.2, 4 USPQ2d 1450, 1453 n.2 (Fed. Cir. 1987) for the
proposition that a claim of a reissue application is broader in
scope than the original claims if it contains within its scope
any conceivable apparatus or process which would not have
infringed the original patent. The examiner cites Al-Site Corp.
v. VSI Int’l, Inc., 174 F.3d 1308, 1320, 50 USPQ2d 1161, 1168
(Fed. Cir. 1999) for the proposition that means-plus-function
claim language is limited to the corresponding disclosed
structure for performing the claimed function plus art recognized
equivalents thereof in existence at the time that the patent was
issued, and that such means-plus-function claim language does not
embrace “after arising equivalents,” which would only be covered
by resort to the doctrine of equivalents. Based on the above,
the examiner advances the following theory as to why the appealed
reissue claims are broader than the original patent claims:
It appears, therefore, that the patent claims,
insofar as they employ means-plus-function language,
were expressly limited to the corresponding disclosed
structure plus art recognized equivalents in existence
3
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007