Ex parte STURM et al. - Page 9




          Appeal No. 97-3187                                                          
          Application No. 07/999,422                                                  


           251 for the following reasons.                                            


               The issue presented by the examiner and the appellants is              
          whether the "divisional doctrine" set forth in In re Orita,                 
          550 F.2d 1277, 193 USPQ 145 (CCPA 1977) is applicable in this               
          application.  The "divisional doctrine" declares that where                 
          the PTO issues a restriction requirement and the applicant                  
          responds by canceling claims to the nonelected invention, and               
          then the applicant fails to file a divisional application with              
          the canceled claims, the applicant is deemed to have                        
          acquiesced in the restriction and is estopped from obtaining                
          by reissue the subject matter of the canceled claims.  Orita,               
          550 F.2d at 1280, 193 USPQ at 148.  This "divisional doctrine"              
          has been strictly construed against reissue applicants                      
          claiming "error" in failing to file a divisional application                
          after a restriction requirement. Even if the applicant's                    
          representative misunderstood the applicant's instructions,                  
          this does not constitute "error" within the meaning of 35                   
          U.S.C.  251.  See In re Weiler, 790 F.2d 1576, 1582, 229 USPQ              
          673, 677 (Fed. Cir. 1986).  "Section 251 is not a panacea                   
          designed to cure every mistake which  might be committed by an              
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