Appeal No. 99-0184 Page 5
Application No. 08/567,510
"divisional doctrine" as set forth in In re Orita, 550 F.2d
1277, 193 USPQ 145 (CCPA 1977) declares that where the PTO
issues a restriction requirement and the applicant responds by
canceling claims to the nonelected invention, and then the
applicant fails to file a divisional application with the
canceled claims, the applicant is deemed to have acquiesced in
the restriction and is estopped from obtaining by reissue the
subject matter of the canceled claims. Orita, 550 F.2d at
1280, 193 USPQ at 148. This "divisional doctrine" has been
strictly construed against reissue applicants claiming "error"
in failing to file a divisional application after a
restriction requirement. Even if the applicant's
representative misunderstood the applicant's instructions,
this does not constitute "error" within the meaning of 35
U.S.C. § 251. See In re Weiler, 790 F.2d 1576, 1582, 229 USPQ
673, 677 (Fed. Cir. 1986). "Section 251 is not a panacea
designed to cure every mistake which might be committed by an
applicant or his attorney." Orita, 550 F.2d at 1281, 193
USPQ at 149. On the other hand, Section 251 is a remedial
statute that is to be interpreted liberally. Weiler, 790 F.2d
at 1579, 229 USPQ at 675. "Although attorney error is not an
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