Appeal No. 98-0552
Application 08/357,567
45 USPQ2d 1161, 1163-64 (Fed. Cir. 1997); and Ball Corp. v.
United States, 729 F.2d 1429, 1436, 221 USPQ 289, 295 (Fed.
Cir. 1989).
The original claims in appellant’s issued patent
application recited that “about 50 to 90 % of said feed is
injected to the lowest injection position”. During
prosecution of that application, appellant deliberately
narrowed the aforementioned range to “about 60 to 75 volume
percent” in order to obviate a rejection over prior art under
35 U.S.C. § 103. In this regard,
see the Office action dated November 25, 1987 (Paper No. 3,
page 4) and the responsive Amendment filed April 27, 1988
(Paper No. 5, pages 3-4). Appellant admits as much in the
instant reissue oath. In the instant reissue application,
appellant has presented claims reciting a range of “about 50
to 75 volume percent”. Allowance of such claims would amount
to an impermissible recapture of a portion of the range
deliberately surrendered by appellant to obtain a patent,
namely recapture of that portion of the range from 50 to 60%.
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