Appeal 2007-0493
Application 10/289,967
Patent 6,144,380
VII. CONCLUSIONS OF LAW
(1) Appellants have failed to establish that the Examiner erred in
rejecting claims 5-15, 17-37, 39-59, 61-85, and 87-101 under
35 U.S.C. § 251 based on recapture. Specifically:
(a) Appellants’ arguments have not rebutted the presumption,
upon which the Examiner’s rejection is based, i.e., that at the time of
the amendment an objective observer would reasonably have viewed
the subject matter of the narrowing amendment and limitations argued
in the parent as having been surrendered.
(2) Claims 5-15, 17-37, 39-59, 61-85, and 87-101 are not patentable.
(3) The Examiner erred in rejecting claims 1-4 under 35 U.S.C. § 251
based on a defective reissue oath.
(4) On the record before us, claims 1-4 have not been shown to be
unpatentable.
(5) Since we have entered a new rejection, our decision is not a final
agency action.
VIII. DECISION
Upon consideration of the record, and for the reasons given, we affirm
the rejection of claims 5-15, 17-37, 39-59, 61-85, and 87-101 under
35 U.S.C. § 251 based on recapture; we reverse the rejection of claims 1-4
under 35 U.S.C. § 251 based on a defective reissue oath; we reverse the
rejection of claims 5-15, 17-37, 39-59, 61-85, and 87-101 under
35 U.S.C. § 103(b); we reject reissue claims 5-15, 17-37, 39-59, 61-85, and
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