Appeal No. 2006-1049
Application No. 09/667,826
III. DISCUSSION – REJECTION UNDER 35 U.S.C. § 251
A. The Prima Facie Case
Our Findings of Fact 80-83 set out the basis upon which the Examiner made
a recapture rejection. As noted in Finding 84, the record supports the Examiner’s
findings.
Basically, in the application which matured into the patent now sought to be
reissued, the Examiner “objected to” originally filed dependent claim 2 (dependent
on claim 1). Why? Because, it depended from claims that were rejected over the
prior art. The Examiner indicated in the first Office action, however, that
application claim 2 would be allowable if re-written in independent form.
Applicants proceeded to re-write application claim 2 by (1) canceling claim
1 and (2) combining limitations of allowable dependent claim 2 with rejected
independent claim 1. Amended application claim 2 issued as patent claim 1.
Applicants also proceeded to re-write application claim 24 by (1) canceling
claims 1 and 23, and (2) combining the limitations of allowable dependent claim
24 with rejected claims 1 and 23. Amended application claim 24 issued as patent
claim 26.
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