Appeal No. 2001-2625 Page 5
Application No. 09/458,052
The 35 U.S.C. § 251 rejection
We will not sustain the rejection of claims 1 to 20 under
35 U.S.C. § 251.
The examiner's basis for this rejection as set forth in
the final rejection (p. 2) and the answer (p. 5) is that the
reissue declaration filed with this application is defective 4
because the error which is relied upon to support the reissue
application is not an error upon which a reissue can be based.
In support thereof the examiner cites 37 CFR § 1.175(a)(1) and
MPEP § 1414 (final rejection, p. 2). In this rejection, the
examiner determined that the appellants were not entitled to
claims 5 to 20 as presented in this application (due to the 35
U.S.C. § 103 rejections set forth above) and therefore, the
stated error in the reissue declaration can not exist.
4The appellants have filed two reissue declarations. The
first reissue declaration was filed December 9, 1999 with the
reissue application. The second reissue declaration was filed
February 26, 2001 and apparently was entered by the examiner
since the Advisory Action (Paper No. 13, mailed March 9, 2001)
states "Declaration filed February 26, 2001 sufficient to
address claims 13-20." Accordingly, both reissue declarations
are before us in this appeal.
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