Appeal No. 2005-0642
Application No. 09/568,278
page 46), the reissue claims on appeal are more narrow than both the patent claims
and the original application claims by reciting a "hook" feature. More specifically,
and with reference to the Appellants' drawing, reissue claim 26 recites "a hook
[106], … said hook extends outwardly from distal end of said latch [80] in a
direction away from said hinge [41], … said hook [106] extends underneath said
ledge [36] to prevent said latch [80] from moving out of the latched position."
The majority does not consider this narrowing aspect of the reissue claims to
avoid the recapture rule because "Appellants have not shown that the claim is
'materially narrowed' or 'narrower in an aspect germane to a prior art rejection' as is
required by Clement and Pannu." (Opinion, page 49). However, as correctly
indicated by the Appellants on page 4 of the Supplemental Appeal Brief filed
March 29, 2002, the broadening and narrowing aspects of the reissue claims (i.e.,
the broadening aspect involves the removed "catch beam" recitation of the patent
claims whereas the narrowing aspect involves the added "hook" recitation of the
reissue claims) both relate to the same subject matter in the sense that both aid in
securing the latch in a latched position.
Regardless, the narrowing aspect of the reissue claims avoids the recapture
rule for a reason additional to and unrelated to that discussed above.
The majority has expressly conceded that "the hook [i.e., the narrowing hook
feature recited in the reissue claims] is not included in the structure of the
originally claimed latching means" (Opinion, page 46). Indeed, this hook feature
was never recited in any of the claims of the patent for which reissue is sought or
of the application from which this patent originally issued. It cannot be disputed,
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