Appeal 2005-0801
Application 09/848,628
claimed in varying degrees of specificity), and this subject matter was before
the Examiner when making the rejections. Such an approach places the
instant case in the very same fact pattern of Clement. That is, reissue claim
8 is both broader and narrower in areas relevant to the prior art rejections.
In re Clement, 131 F.3d 1464, 1470, 45 U.S.P.Q.2d 1161, 1165-66 (Fed. Cir.
1997).
On the other hand, the now claimed aspect of a pivotable perforated
false bottom having a support member can be viewed as not being germane
to the rejection because the aspect of the perforated false bottom having a
support member extending downwardly from a bottom surface of the false
bottom was never claimed before. In this scenario, the fact pattern places
the instant case in category of 3(a) of Clement.
However, no matter which scenario is chosen, each of the above
scenarios results in the same outcome because, on balance, reissue claim 8 is
broader than it is narrower, relative to the surrendered subject matter. That
is, reissue claim 8 is broader than it is narrower because the absence of a lid
allows for limitless types of lids or no lid at all (it has been broadened in a
limitless manner), while the perforated false bottom has not been narrowed
in such a limitless manner (the false bottom is limited to a particular support
member).
In view of the above, therefore, the recapture rule bars the claims. Id.
37
Page: Previous 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
Last modified: November 3, 2007