Appeal 2005-0801
Application 09/848,628
Judge MacDonald, with whom Judge Jerry Smith joins, concurring.
A. Discussion of Obviousness
We concur with the result and rationale of Judge Franklin with respect
to the Examiner’s rejection based on 35 U.S.C. § 103.
B. Discussion of Recapture
1. Recapture principles
(1)
The statute
The reissue statute expressly permits a patentee to correct an error
thus permitting patentee to obtain reissue claims broader than the originally
issued patent claims at any time within two (2) years from the date the
original patent issues. More particularly, 35 U.S.C. § 251, ¶¶ 1 and 4,
provide 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, on the surrender of such patent
and the payment of the fee required by law, 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.
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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