Appeal No. 1998-0212 Page 8
Reissue Application No. 07/837,588
At the outset, we address the appellant’s argument
regarding his failure to file certain patent applications
timely. He argues that on June 13, 1989, besides paying the
issue fee, he “began preparing the necessary divisional
application for [nonelected] claims 35-49,” (Appeal Br. at 6),
and “continuation applications to include the presently
pending [i.e., reissue application] claims 35-74 and 76.”
(Id.) The appellant states that he planned to file the
divisional application when he received a “Notice of Patent
Issuance” from the PTO. (Id.)
In support of the appellant’s position, D. Bruce Prout,
the “lawyer principally responsible for the prosecution of the
U.S. patent application resulting in the [‘814 Patent],”
(Prout Decl., 5/17/90, ¶ 1), provides the following
declaration:
11. Since confirmation of the entry or denial
of the Supplemental Amendment Under Rule 1.312 of
June 13, 1989 had not been received, and since it
has typically taken at least 3 months from the date
of the payment of issue fees until patent issuance,
and further since the Notice of Patent Issuance had
not been received, the actual issuance of the
original patent was not expected until around the
middle of September 1989.
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