Appeal No. 2007-0441
Reissue Application 10/155,945
Patent 5,311,959
1 Examiner’s rejections
2 The Examiner has rejected the claims as being unpatentable under
3 35 U.S.C. § 251, fourth paragraph (“No reissued patent shall be granted
4 enlarging the scope of the claims of the original patent unless applied for
5 within two years from the grant of the original patent.”)
6 The Examiner has also rejected the claims under 35 U.S.C. § 251,
7 third paragraph, as being based on an improper reissue oath (“application for
8 reissue may be made and sworn to by the assignee of the entire interest if the
9 application does not seek to enlarge the scope of the claims of the original
10 patent.”)
11 Other findings as necessary appear in other portions of this opinion.
12
13 C. The issue
14 The issue on appeal is whether reissue claim 1 enlarges the scope of
15 claim 1 of the patent.
16 More particularly, as a matter which appears to us to be an issue of
17 first impression, does a claim which is indefinite have any scope, and if not,
18 does reissue claim 1 necessarily enlarge the scope of patent claim 1.
19
20 D. Discussion
21 We begin our discussion with an observation in a recent opinion of
22 our appellate reviewing court to the effect that § 251 is remedial in nature,
23 based on fundamental principles of equity and fairness, and should be
24 construed liberally. However, the remedial function of the statute is
9
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