Appeal No. 2001-2625 Page 6
Application No. 09/458,052
We find no authority for this rejection in 35 U.S.C. §
251, 37 CFR § 1.175(a)(1) or MPEP § 1414. In our view, a
prior art rejection of all claims sought to be added to the
patent does not, ipso facto, give rise to a rejection under 35
U.S.C. § 251 as set forth by the examiner in this case.
Additionally, we note that from our review of the two reissue
declarations, both reissue declarations comply with the
requirement of 37 CFR
§ 1.175(a)(1) since the appellants have stated that they
believe the original patent to be wholly or partly inoperative
or invalid by reason of the patentee claiming more or less
than the patentee had the right to claim in the patent and
stating at least one error being relied upon as the basis for
reissue. Moreover, given our disposition of the examiner's
rejections under 35 U.S.C. § 103, as noted infra, the
examiner's entire premise for this rejection is without
foundation.
For the reasons set forth above, the decision of the
examiner to reject claims 1 to 20 under 35 U.S.C. § 251 is
reversed.
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