Appeal No. 2005-2476
Application 08/862,039
REMAND TO THE EXAMINER
This is a remand of the appeal under 35 U.S.C. § 134 from the rejection of
claims 28-59, in accordance with 37 CFR § 41.50(a)(1). After considering the
record before us, we are convinced that the instant appeal is not ready for
meaningful review. Accordingly, we hereby remand the application to the
examiner to consider the following issue, and to take appropriate action.
Was the prosecution history as a whole examined in determining
whether reissue recapture applies?
Reissue application 08/862,039, filed May 22, 1997, seeks to reissue U.S.
Patent 5,418,537, issued May 23, 1995, based on application 07/978,272, filed
November 18, 1992.
Additionally, U.S. Patent 5,777,580, has issued based on a related copending
application 08/396,977, filed on March 1, 1995, as a continuation-in-part of
application 07/978,272, filed November 18, 1992, which is the parent application
of the appeal now before us.
We note that with regard to claim amendments, the recapture rule does not
apply in the absence of evidence that the amendment was an admission that the
scope of the claim was not patentable. In re Clement, 131 F.3d 1464, 1469,
45 USPQ2d 1161, 1164 (Fed. Cir. 1997). To determine whether an applicant
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