Appeal 2006-1865
Application 09/660,433
Patent 5,802,641
(6)
What subject matter is surrendered?
In a case involving Substep (3)(a) of Step 3 of Clement, what is the subject
matter surrendered?
Is it
(1) the subject matter of an application claim which was amended
or canceled or
(2) the subject matter of an application claim which was amended
or canceled and, on a limitation-by-limitation basis, the
territory falling between the scope of
(a) the application claim which was canceled or amended
and
(b) the patent claim which was ultimately issued?
We believe North American Container stands for the proposition that it is (2) and
not (1). Accordingly, we hold that it is (2).
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