Appeal 2007-1119
Application 10/200,207
argument is that there is no evidence that could potentially enable us to
conclude that what had happened was the result of a "trivial clerical error."
Rather, Applicants chose a course of ex parte prosecution, namely, to
file CPAs under Rule 53(d), and now they regret the consequences. Notice
of those consequences was published in the Federal Register on
promulgation of the final rule. See , e.g,. 62 Fed. Reg. at 53144 and 53245
(10 October 1997). Moreover, by choosing that course, they gained the
benefit of avoiding challenges to their claimed subject matter from all art
published after 23 June 1986, their Swiss foreign priority date, and as late as
6 December 1999. Granting Applicants' request for a full examination of
their claimed subject matter based on a more recent priority date would be
granting them the "second opportunity to prosecute de novo" their original
application that the court precluded in Weiler. As our reviewing court has
held, such "errors" are not correctable under § 251. Accordingly, Applicants
have failed to show error by the Examiner.
We have reviewed the cases Applicants cited to the Examiner, but we
conclude that they are not persuasive because the facts on which those cases
rest are not sufficiently similar to the facts of this case that their holdings
apply here.
D. ORDER
In view of the foregoing considerations, it is:
ORDERED that the Examiner's rejection is AFFIRMED.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136.(a).
AFFIRMED
14
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: September 9, 2013