Appeal No. 2005-0642
Application No. 09/568,278
DECISION ON APPEAL UNDER 35 U.S.C. § 1342
The Examiner has rejected claims 26-46 of the reissue application on appeal
as being unpatentable under 35 U.S.C. § 251 based on recapture. With respect to
claims 26-46, a 2 to 1 majority of the panel affirms the decision of the Examiner.
A plurality opinion authored by Judge MacDonald, joined by Judge Jerry
Smith; a dissenting opinion authored by Judge Garris; and Appendices 1 through 6
to Judge MacDonald’s opinion, follow.
2 Application 09/568,278, on appeal, is a continuation of reissue application
08/429,317, containing claims numbered 1-37. Claims 26-37 of the present appeal
do not correspond to claims 26-37 of 08/429,317. Therefore, claims 26-60 of the
present appeal should have been numbered as claims 38-72. 37 C.F.R. § 1.126.
We will not at this late date attempt to renumber the claims. Rather, in all
instances throughout this decision where we refer to claims numbered 26-60
without referring to a specific application number, we are referring to the claims of
the application which is the subject of the present appeal.
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