Appeal No. 98-0377
Application 08/573,460
upon by the examiner to meet this burden, i.e., that the
appellant chose to correct the errors via the instant reissue
application rather than by attempting to amend the application
before it matured into the patent, are not, in and of
themselves, indicative of any deceptive intention.
Moreover, under the current PTO practice an applicant for
reissue is not required to “establish” that the errors sought
to be corrected by reissue arose without any deceptive
intention. In this regard, an applicant’s statement in the
reissue oath or declaration of a lack of any deceptive
intention is to be accepted as being dispositive in the
absence of special circumstances such as an admission or a
judicial determination to the contrary (see MPEP §§ 1448 and
2012; and also MPEP §§ 1414 and 2022.05). The record does not
reflect the presence of any such special circumstances in this
case.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 251 rejection of claims 1 through 17.
Finally, we remand the application to the examiner to
consider whether the subject matter currently set forth in
independent claims 1 and 17, and in claims 2 through 16 which
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