Appeal No. 2006-2248
Application No. 10/158,618
3. Applicants’ response to the Examiner’s case
(1) Defective Reissue Declaration argument
Applicants argue at page 5 of the Appeal Brief filed May 11, 2004 that
(matter in brackets added):
Attached are the [(1)] Reissue Application Declaration by
the Assignee submitted May 30, 2002 (Exhibit A), [(2)]
Reissue Application Declaration and Power of Attorney
submitted April 16, 2003 (Exhibit B), and [(3)]
Declaration of Andrea L. Colby submitted April 16, 2003
(Exhibit C), with the required language underlined. In
the declarations, the Assignee states that the error was
that patentee “claimed more or less than the patentee had
a right to claim in the patent,” (Exh. B, p. 3) and the
“issued claim was narrower than Patentee had the right to
claim . . . all errors corrected in the reissue arose without
any deceptive intention on the part of the applicant.”
(Exh. A, p. 2) The Declaration of Andrea L Colby
further describes the inadvertent error and the
circumstances in which it occurred (Exh. C and see
infra). Applicant believes that this satisfies the
requirements and the rejection should be removed.
The ultimate point which we understand Applicants to be trying to make is
that the three declarations (Appellants’ Exhibits A, B, and C) are sufficient to meet
the requirements of 35 U.S.C. § 251. We disagree.
At page 3 of the Examiner’s Answer, the Examiner points to three defects in
the reissue declaration. Appellants correctly point out that two of these are not
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