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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