Appeal 2006-1865
Application 09/660,433
Patent 5,802,641
IV. DISCUSSION – REJECTION UNDER 35 U.S.C. § 251
A. Recapture Principles
(1)
The statute
The reissue statute expressly permits a patentee to correct an error thus
permitting patentee to obtain reissue claims broader than the originally issued
patent claims at any time within two (2) years from the date the original patent
issues. More particularly, 35 U.S.C. § 251, ¶¶ 1 and 4, provide in pertinent part:
Whenever any patent is, through error without any deceptive
intention, deemed wholly or partly inoperative or invalid, by reason of
a defective specification or drawing, or by reason of the patentee
claiming more or less than he had a right to claim in the patent, the
Director shall, on the surrender of such patent and the payment of the
fee required by law, reissue the patent for the invention disclosed in
the original patent, and in accordance with a new and amended
application, for the unexpired part of the term of the original patent.
No reissued patent shall be granted enlarging the scope of the claims
of the original patent unless applied for within two years from the
grant of the original patent.
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