Appeal 2007-1119
Application 10/200,207
25. Applicants complain that "[t]his approach makes it impossible for the
applicant to respond as it provides no real explication of the Office's
reasoning." (Br. at 8.)
26. More specifically, Applicants argue that they should have been
permitted to correct their filing error by treating the CPAs as having been
filed under 37 C.F.R. § 1.53(b). (Br. at 9.)
27. Applicants argue further that the "sole basis for denying the reissue
request . . . is based solely on an interpretation of 35 U.S.C. § 154(c), (which
interpretation itself is highly questionable subject at the appropriate time and
manner to challenge as to correctness) found, as best be determined . . . in
the Official Gazette notice of February 24, 1988." (Br. at 9–10.)
C. DISCUSSION
The section of the patent statute providing for correction of errors in a
patent by reissue of the patent reads, in relevant part:
Whenever any patent is, through error without any deceptive
intention, deemed wholly or partly inoperative or invalid . . . 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.
35 U.S.C. § 251, first paragraph (emphasis added).
Applicants, in their words:
seek to claim the benefit of the full term of the original patent,
which term was abridged by the erroneous filing of a Continued
Prosecution Application under 37 C.F.R. § 1.53(d) instead of a
continuing application under 37 C.F.R. § 1.53(b), thereby
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