Appeal No. 2006-2248
Application No. 10/158,618
The third and final step in applying the recapture rule is to determine
whether the reissue claims are materially narrowed in other respects so as to
thereby avoid the recapture rule. Argued reissue claim 2 is not narrowed in any
respect relative to original application claims 1-10. As properly indicated by both
the Appellants and the Examiner, argued reissue claim 9 is more narrow than the
original application claims by virtue of the requirement that the claimed
composition include a “humectant.” However, I do not perceive this “humectant”
limitation as a narrowing which is material, and the Appellants do not even allege
that it is material.
In light of the foregoing, I reach the same ultimate determination as the
majority, albeit for different reasons, that the Examiner’s Section 251 rejection of
reissue claims 2-19 based on recapture should be sustained.
)
)
) BOARD OF PATENT
BRADLEY R. GARRIS )
Administrative Patent Judge ) APPEALS AND
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