Appeal 2005-0801
Application 09/848,628
made, one skilled in the art could not reasonably have viewed the subject
matter broader than any narrowing amendment as having been surrendered.
(3) Arguments of Supplemental Reply Brief filed May 3, 2004
At page 2 of the Supplemental Reply, Applicants argue:
By eliminating recitation of the lid, reissue claims
8-13 . . . do not attempt to recapture coverage of a
waste cart having a lid without a groove or
retainer. Instead, reissue claims 8-13 do not recite
a lid at all.
We disagree. Appellants’ logic is flawed. A waste cart having the claimed
false bottom and a lid without the groove or retainer would still infringe
appellants’ reissue claim. The effect of not reciting a lid at all is recapture
of a waste cart having a lid without the groove or retainer. Our sole concern
is whether Appellants can rebut this recapture by showing that at the time
the amendment was made, one skilled in the art could not reasonably have
viewed the subject matter broader that a lid with a groove or retainer as
having been surrendered.
Appellants’ Supplemental Reply does not favor us with any argument
and evidence with respect to Limitations A and B above. Thus, we find no
basis here for reversing the Examiner’s rejection.
(4) Other arguments
We have considered all other arguments made by applicant in the
Appeal Brief and subsequent Briefs. None has convinced us that the
Examiner erred in rejecting reissue claims 8 through 13 based on recapture.
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