Appeal 2007-0040
Application 10/170,069
Patent 6,073,699
Prosecution:” (8th Ed., Rev. 5, Aug. 2006). Even with a presumption that
Eggert has not been abrogated by North American Container,10 Appellant
fails to show (Second Reply Br. 7) that recapture has been avoided by
presentation of a broadened form of the limitation “at least one second
roller.”
I therefore agree with the conclusion that Appellant has failed to
establish that the Examiner erred in rejecting claim 4 under 35 U.S.C. § 251
based on recapture. Further, I agree in full with the majority’s finding that
reissue claim 4 is anticipated under 35 U.S.C. § 102(b) by each of the
Holmes and Schivley patents.
rwk
PATTERSON & SHERIDAN, L.L.P.
3040 POST OAK BOULEVARD, SUITE 1500
HOUSTON TX 77056
10 North American Container, Inc. v. Plastipak Packaging, Inc., 415 F.3d
1335, 75 USPQ2d 1545 (Fed. Cir. 2005).
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