Appeal 2006-2966
Application 09/148,152
Reissue Declaration Error 2
As an additional reissue error, Appellant states: "Through error and
without deceptive intent, references cited in a Search Report dated July 14,
1994, from the German Patent Office in a corresponding German application
were not brought to the attention of the US Examiner" (Decl. 2, Item 2).
Concerning the relevancy of these references, Appellant states only that "[a]t
least some of the references cited in the German Search Report may be
considered material to the patentability of the generic claims of the US
application [i.e., the subject reissue application]" (Decl. 2, Item 2.e). Indeed,
Appellant acknowledges that these references would not raise a substantial
new question of patentability of the patented claims but urges that they
would have been relevant to generic claim 17 of the original '177 patent
application and are relevant to generic claim 10 of this reissue application
(Br. 6).
As previously explained, § 251 permits the reissue of defective
patents "[w]henever 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" (1952). Here, the
failure to bring the above-noted references to the attention of the US
Examiner has not rendered the '177 patent defective in any perceptible way.
As the Appellant has acknowledged, these references do not raise a
substantial new question of patentability of the '177 patent claims.
Furthermore, it is simply irrelevant to Appellant's request for reissue under
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