Appeal 2005-0801
Application 09/848,628
opinion authored by Judge MacDonald, joined by Judge Smith, having an
Appendix, follows.
Judge Franklin, with whom Judges Garris and McQuade join.
We affirm the Examiner’s rejection of claims 8-13 under 35 U.S.C.
§ 251 as improper recapture of broadened claimed subject matter
surrendered in the application for patent upon which the present reissue is
based.
We reverse the Examiner’s rejection of claims 8-13 under 35 U.S.C.
§ 103 as being obvious over Schafer in view of Matry.
I. The Recapture Rejection
The examiner has rejected claims 8-13 under 35 U.S.C. § 251.
35 U.S.C. § 251, ¶ 1, provides in pertinent part:
Whenever any patent is, through error without any
deceptive intention, deemed wholly or partly inoperative or
invalid, by reason of a defective specification or drawing, or by
reason of the patentee claiming more or less than he had a right
to claim in the patent, the Director shall . . . reissue the patent
for the invention disclosed in the original patent, and in
accordance with a new and amended application, for the
unexpired part of the term of the original patent.
35 U.S.C. § 251, ¶ 4, provides:
No reissued patent shall be granted enlarging the scope of the
claims of the original patent unless applied for within two years from
the grant of the original patent.
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