Appeal No. 97-3187
Application No. 07/999,422
applicant or his attorney." Orita, 550 F.2d at 1281, 193
USPQ at 149. On the other hand, Section 251 is a remedial
statute that is to be interpreted liberally. Weiler, 790 F.2d
at 1579, 229 USPQ at 675. "Although attorney error is not an
open invitation to reissue every case in which it may appear .
. . the purpose of the reissue statute is to avoid forfeiture
of substantive rights due to error made without intent to
deceive." Scripps Clinic & Research Found. v. Genentech,
Inc., 927 F.2d 1565, 1575, 18 USPQ2d 1001, 1009 (Fed. Cir.
1991).
The "divisional doctrine" set forth in Orita does not
apply to the facts of this case. In that regard, we note that
method claims 5 and 6 were never subject to a restriction
requirement. The restriction requirement made in Application
No. 07/470,974 was between a process of making and product
made. Thus, there never was a determination by the PTO that
the subject matter of claims 1 and 2 was restrictable from the
subject matter of claims 5 and 6 (i.e., that the subject
matter of claims 1 and 2 defines an independent and distinct
invention from the subject matter of claims 5 and 6).
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