Appeal No. 98-0377
Application 08/573,460
rejection dated November 8, 1996 (Paper No. 6). It is well 3
settled that the refusal of an examiner to enter such an
amendment is a matter of discretion which is reviewable by
petition to the Commissioner rather than by appeal to this
Board. In re Mindick, 371 F.d. 892, 894, 152 USPQ 566, 568
(CCPA 1967). Accordingly, we shall not further discuss this
matter.
Turning now to the merits of the examiner’s rejection,
the record includes two reissue declarations (an original and
a supplemental) which indicate that:
a) the patentee (the appellant) filed the instant
application for the reissue of U.S. Patent No. 5,463,815 on
the belief that the patent was partly inoperative or invalid
“because independent Claims 1 and 17 claim more than patentee
had a right to claim in the patent by failing to include the
limitations presented originally in dependent claim 10"
(original reissue declaration, page 4);
b) the patentee came to this belief upon becoming aware,
3The examiner effectively withdrew the finality of this
particular rejection by issuing the final rejection dated July
1, 1998 (see note 2, supra). It is the latter rejection from
which the current appeal is taken.
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