Appeal No. 2005-0642
Application No. 09/568,278
(Findings of Fact 23 and 24). Although the hook is disclosed as part of the
latching beam 100 (Finding of Fact 18), the function of the disclosed hook 106 is
limited to “preventing latch 80 from vibrating out of a latched position” (Finding
of Fact 24). Thus, the hook is not included in the structure of the originally
claimed latching means. Therefore, we agree with Appellants that the reissue
claims on appeal are narrower than the cancelled or patented claims with regard to
this aspect.
Appellants states at page 7 of the Brief:
M.P.E.P. Section 1412.02 cites Ball Corp. v. United States, 729 F.2d
1429, 221 USPQ 289 (Fed. Cir. 1994) as its authority . . . Similar to
the present reissue application, the reissue claims in Ball were broader
than the claims of the original patent yet narrower than the canceled
claims. Id. at 1437.
Appellants go on to argue at page 8 that they have shown there is no recapture
because “[it] is clear that M.P.E.P. Section 1412.02 allows the patentee to acquire,
through reissue, claims that are narrower than the canceled claims yet broader than
the original patent claims. We disagree.
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