Appeal 2005-0801
Application 09/848,628
11 have been broadened in an aspect germane to the prior art
rejections, because applicant has removed the limitations relating to
the “reinforcing groove” and the “L shaped retainer member”.
Additionally, Claims 8 and 11 are now narrower, namely, “a
pivotable, perforated false bottom . . . a support member extending
downwardly from a bottom surface of the false bottom” has been
added. However, this broadening directly relates to the prior art
rejections because, in an effort to overcome the prior art
rejections, Applicant added the limitations of a “reinforcing
groove” and [an] “L shaped retainer member” to define the
original claims over the prior art. Therefore, Examiner believes
that the present reissue claims fall into the 3(a) category as set forth
above in the principles stated in Clement, and that the recapture rule
bars reissue Claims 8-13.
88. The record supports the Examiner’s findings with respect
to what limitations do not appear in reissue application claims 8-13, which
were present in patent claims 1, 2, 4 and 5, of the original application.
C. DECISION ON APPEAL UNDER 35 U.S.C. § 134
The Examiner has rejected claims 8-13 of the reissue application on
appeal as being unpatentable under 35 U.S.C. § 103 based on prior art. The
entire panel reverses this decision of the Examiner.
The Examiner has rejected claims 8-13 of the reissue application on
appeal as being unpatentable under 35 U.S.C. § 251 based on recapture. The
entire panel affirms this decision of the Examiner.
A majority opinion authored by Judge Franklin, joined by Judges
Garris and McQuade, additional views by Judge McQuade, and a concurring
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