Appeal No. 2002-0494 Page 8
Application No. 29/102,729
decision of the examiner to reject the design claim under 35 U.S.C. § 171 and 35
U.S.C. § 251 as not being to the same invention is reversed.
The rejection based on lack of defect
We will not sustain the rejection of the design claim under 35 U.S.C. § 251 as
lacking defect in the original application and lack of error in obtaining the original patent.
The reissue declaration clearly sets forth four defects in the original design
patent. While one of those defects (i.e., that the central portion of the board could be
longer or shorter than originally shown and could thus be indicated broken with dashed
lines to indicate that the exact length was not considered a distinguishing feature)
cannot be corrected based upon our decision above with respect to the new matter
rejections, the examiner has not raised any objection to correcting the other three
defects (i.e., the fin and the mast box of the aquatic board and the graphics of the
alternative embodiment of Figure 7 were not required to be shown in full line, but only in
broken lines, as environment). Thus, we conclude that there was a defect in the
original application and an error in obtaining the original patent entitling the appellant to
file a reissue application.
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