Appeal No. 98-0541
Application 08/409,137
we--like the examiner--are persuaded that claim 12 complies
with the description requirement of the first paragraph of
35 U.S.C. § 112.
It is true that the claims on appeal cover a rotary heat
exchanger and that appellant elected to prosecute only a
modular heat exchanger following a restriction requirement in
the application which matured into the patent. Had appellant
presented claim 12 in the application which matured into the
patent, he also would have been able to present the rejected
claims on appeal. Appellant is not here attempting to claim
something he could not have claimed in the application which
matured into the patent. Rather, through error, he failed to
present claim 12 during prosecution of the application which
matured into the patent sought to be reissued. Since claim 12
is generic to both rotary and modular heat exchangers, and has
been found to be allowable, we perceive no reason why
appellant should not also be able to present claims limited to
rotary heat exchangers.
C. Decision
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