Appeal No. 2004-0659
Application No. 09/111,978
THE ORIGINAL APPEAL
48. Appellant filed an Appeal Brief on May 6, 2002, and an Amended
Appeal Brief (the Brief) on March 17, 2003, fully replacing the earlier filed Appeal
Brief.
49. Claims 30 through 85 of Appendix B of the Brief are the claims on
appeal before the Board.
50. The Examiner mailed an Examiner’s Answer (hereafter, the
Answer) on July 31, 2003.
51. Appellant filed a Brief in Reply (hereafter, the Reply) and Request
for Oral Hearing on October 8, 2003.
52. On October 28, 2003, the examiner notified Appellant that the
Reply had been entered into the record and the appeal forwarded to the Board for
decision.
53. An oral hearing before the Board was held on December 8, 2004.
54. On March 31, 2005, the Board mailed a Decision on Appeal
(hereafter, the Decision), affirming the examiner’s rejection of claims 30 through 85.
55. On May 31, 2005, Appellant filed a Request for Rehearing of the
Decision.
56. The panel was expanded and a second oral hearing before the
Board was held by telephone on June 27, 2006.
C. DECISION ON APPEAL UNDER 35 U.S.C. § 134
The examiner has rejected claims 30 through 85 of the reissue application on
appeal as being unpatentable under 35 U.S.C. 251 based on recapture. With respect to
claims 30 through 85, this panel unanimously affirms the decision of the examiner.
An opinion authored by Judge Gross, joined by Judge Ruggiero, a concurring
opinion authored by Judge MacDonald, joined by Judge Jerry Smith, a concurring
opinion authored by Judge Garris, and Appendix 1 follow.
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