Appeal No. 2006-2248
Application No. 10/158,618
2. The Examiner’s prima facie case
(1)
Defective Reissue Declaration
Our finding of fact 51 sets out the basis upon which the Examiner made a
35 U.S.C. § 251 rejection based on a defective reissue declaration. As noted in
Findings 52-54, the record supports in part the Examiner’s findings.
The Examiner’s accurate factual analysis demonstrates that the Examiner
has made out a prima facie case of a defective reissue declaration.
(2)
Recapture of Surrendered Subject Matter
Our findings of fact 56-57 set out the basis upon which the Examiner made a
recapture rejection. As noted in Finding 58, the record supports the Examiner’s
findings.
Basically, in the application which matured into the patent now sought to be
reissued, the Examiner “rejected” originally filed claims 1-10. Why? Because,
they were anticipated by or obvious over the prior art.
Applicants proceeded to re-write independent application claim 1 by limiting
the retinoid compound to a specific percentage by weight of the total composition
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