Ex Parte KRAUS - Page 73

          Appeal No. 2005-0841                                                        
          Application No. 08/230,083                                                  

          correct in our view.  Nevertheless, we see nothing in the                   
          plurality's or concurrence's opinions which suggests that their             
          decision to affirm the claim 14 rejection would be any different            
          even if the aforementioned embodiments were incompatible.  Under            
          this circumstance, it would be impossible for a patentee to ever            
          obtain reissue patent protection for an invention embodiment which          
          had been erroneously never claimed during prosecution of the                
          original application.  Such an outcome would violate a reissue              
          applicant's statutory rights including the right to enlarged claim          
          scope.                                                                      
               Third, the majority's determination, that patentee has                 
          surrendered subject matter which does not include the surrounding           
          rim embodiment of original claim 2 and patent claim 1, is directly          
          contrary to intrinsic record evidence in the form of patent claim           
          11.  This is because patent claim 11, which is directed to an               
          alternative clip connection embodiment, unquestionably does not             
          contain any limitations specific to the surrounding rim embodiment.         
          From our perspective, this undisputed fact by itself clearly                
          invalidates any merit the majority's determination might otherwise          
          seem to possess.                                                            
               In summary, we believe that any one of the above discussed             
          reasons taken alone is adequate to reveal that the majority has             
          impermissibly denied the appellant his right under 35 U.S.C. § 251          
          to enlarged claim scope as defined by claim 14.  These reasons              


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