Appeal No. 98-3125
Application Nos. 08/294,730, 90/003,655, 90/003,826 and
90/004,552
For the reasons advanced by the examiner on page 5 of the
answer, we share the view that the decisions in both
Recreative Technologies Corp. and Portola Packaging, Inc. are
inapposite to this case for the reissue of U.S. Patent No.
5,044,412. In addition, we would distinguish the present fact
situation from that of both of the above decisions, since no
final Agency action by the Patent and Trademark Office (i.e.,
issuance of the reissue patent or a Reexamination Certificate)
had taken place in this application at the time the examiner
reconsidered the prior art involved and changed his mind
concerning the allowability of claims 1 through 3, 5, 6, 9
through 18 and 20.
To summarize our decision, we have affirmed the
examiner's rejection of claims 1 and 6 under 35 U.S.C. § 103,
but reversed the examiner's rejection of claims 2, 3, 5, 9
through 18 and 20 under 35 U.S.C. § 103. In addition,
pursuant to 37 CFR
§ 1.196(b), we have entered a new ground of rejection against
claim 5 on appeal under 35 U.S.C. § 112, second paragraph, and
23
Page: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Next
Last modified: November 3, 2007