Appeal No. 98-0552
Application 08/357,567
determined that the examiner has not made out a prima facie
case of obviousness. Nevertheless, we do note for the record
that the examiner’s finding of no unexpected results would
appear to be inconsistent with an earlier determination
(during prosecution of appellant’s issued patent application)
that the examples in appellant’s specification do indeed
demonstrate unexpected results with regard to prior art
references (Bryson et al; Kovach et al) of scope and content
similar to Hettick. See the Office actions (Paper Nos. 3 and
6) in appellant’s issued patent file, application 07/067,678.
Rejection Under 37 CFR 1.196(b)
In accordance with the provisions of 37 CFR 1.196(b), we
hereby apply a new ground of rejection as follows:
Claims 33-41, 43, 44/41 and 49-52 are rejected under
35 U.S.C. § 251 as being an improper recapture of claimed
subject matter deliberately canceled in the application for
the patent upon which the present reissue is based. With
regard to the “recapture” bar, see In re Clement, 131 F.3d
1464, 1468,
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