Appeal 2005-0801
Application 09/848,628
through reissue a scope of protection to which he is rightfully entitled for
overlooked aspects. Hester, 142 F.3d at 1483, 46 U.S.P.Q.2d at 1650.
In applying these principles to the present case, reissue claim 8 is
suitable for discussion given the appellants’ statement that “[c]laims 8-13
stand or fall together” (Brief filed November 12, 2002, page 3).
Claim 8 is broader in pertinent part than the claims in the patent
sought to be reissued in that does not include the limitations in independent
patent claim 1 relating to the “reinforcing groove” or the limitations in
independent claims 2, 4 and 5 pertaining to the “at least one L shaped
retainer member.” The prosecution history of the patent shows that the
Appellants relied on these respective limitations to obtain the patent. Thus,
the broadened aspects of claim 8 clearly relate to surrendered subject matter.
Claim 8 is narrower than the patent claims in that it recites a pivotable
perforated false bottom having a downwardly extending support member.
Patent claim 4 is the only patent claim that recites a perforated false bottom,
but it does not define this element as being pivotable or as having a support
member.
The prosecution history of the patent shows that the original
application contained a number of claims that included the perforated false
bottom. Original application claims 5, 7, 15 and 18 recited the perforated
false bottom in relatively broad terms, and original application claims 9 and
19 further defined the perforated false bottom as being hingedly connected,
i.e., pivotable. The record also shows that Appellants ultimately canceled all
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