Appeal No. 2000-0132
Application No. 08/934,791
Whenever any patent is, through error without any
deceptive intention, deemed wholly or partly
inoperative or invalid, . . . by reason of the patentee
claiming more or less than he had a right to claim in
the patent, the Commissioner shall... reissue the
patent for the invention disclosed in the original
patent . . . . [Emphasis ours.]
Consistent with this statutory language, our reviewing court in
In re Amos, 953 F.2d 613, 618, 21 USPQ2d 1271, 1275 (Fed. Cir.
1991) stated that
the inquiry under § 251 as to whether the new claims
are for the invention originally disclosed is analogous
to the analysis required by § 112, ¶ 1.
Since the examiner has not argued, much less demonstrated, that
the presently claimed subject matter is not originally described
within the meaning of § 112, paragraph 1, we reverse this Section
251 rejection as well.
We turn next to the examiner’s rejection of claims
21 through 25, 27, 31, 44 through 46, 48, 52, 54, 55 and 61 under
35 U.S.C. § 251 as being based on a defective reissue
declaration. According to the examiner (Answer, page 7):
The reissue oath or declaration filed with this
application and the supplemental reissue declaration of
March 2, 1998 are defective because they fail to
particularly specify an error relied upon, as required
under 37 CFR § 1.175.
35 U.S.C. § 251 provides in relevant part:
Whenever any patent is, through error without any
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