Appeal No. 1998-0212 Page 23
Reissue Application No. 07/837,588
Moreover, granting by reissue, claims that are substantially
identical to those nonelected in the ‘176 Application, would
be tantamount to ignoring the restriction requirement set
forth in the original application. Indeed, such a
misapplication of section 251 would bypass the copendency
requirement of 35 U.S.C. §§ 120 and 121.
In summary, the appellant has not established the
requisite error under 35 U.S.C. § 251 to justify granting a
reissue patent containing claims substantially identical to
those non-elected in the original application. Claims 77-84,
87, 88, 90-107, 109, 110, and 112-120 fall with claim 85.
Therefore, we affirm the rejection of claims 77-85, 87, 88,
90-107, 109, 110, and 112-120 under 35 U.S.C. § 251.
Our affirmance is based only on the arguments made in the
briefs. Arguments not made therein are not before us, are not
at issue, and are thus considered waived. Next, and last, we
address the specifying of a reissue error for claims 121-144.
Claims 121-144
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