Appeal No. 1999-0880
Application No. 08/700,610
possession, at the time of the original filing date, the
invention as now claimed, viz., a “processor” or “software”
controlled code location pointer.
Initially, we point out that we have read and are aware
of the recent decision of the Federal Circuit in Overhead Door
Corporation and GMI Holdings, Inc v. The Chamberlain Group,
Inc.. While appellants’ representative at the hearing of
October 18, 1999 indicated that the Federal Circuit has now
spoken on the issue with which we are confronted, we cannot
agree. In our view, we are not bound by the Overhead Door
decision because the court dealt therein with an appeal from a
District Court grant of summary judgment, concerned with
whether there were material issues of fact to be decided which
might negate the summary judgment decision. Further, the
claims with which we deal are different from the patented
claims in Overhead Door, the issues are different (we deal
with the factual question of whether there was an adequate
written description, or support, in the original disclosure
for that which appellants now claim) and Overhead Door was
directed to an infringement action wherein we deal with the
patentability of newly added claims in a reissue application.
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