Appeal 2007-1119
Application 10/200,207
We begin our consideration of the merits of this appeal by inspecting
the language of the statute for its plain meaning. Medrad, Inc. v. Tyco
Healthcare Group LPC, 466 F.3d 1047, 1051, 80 USPQ2d 1526, 1528 (Fed
Cir. 2006) (reh'g and reh'g en banc denied) ("If the words [of the statute] are
unambiguous, no further inquiry is usually required." (citation omitted)).
Section 251 states that if the Director reissues the patent, it shall be reissued
"for the unexpired part of the term of the original patent." These words are
plain, direct, and unambiguous. The term of the original patent is set upon
issuance, and, by the terms of the statute, reissue cannot operate to extend
that term. As the MPEP puts it, "[t]he maximum term of the original patent
is fixed at the time the patent is granted." MPEP § 1405, 8th Ed., Rev. 5.
While circumstances can be imagined under which patent term is shortened
by requirements to disclaim term, e.g., to remove a rejection for
obviousness-type double patenting, the expansion of patent term by reissue
is foreclosed by the plain language of the statute.
Based on our review of the record, we find that the Examiner,
following the MPEP, simply applied the plain language of the statute in
holding that the error asserted by Applicants was not an error correctable by
reissue. Accordingly, we reject Applicants' argument that they have not
been accorded adequate notice of the basis of the Office's position.
We therefore AFFIRM the Examiner's rejection on the same basis as
the Examiner: section 251 expressly forbids reissue expanding the term of a
reissued patent.5
5 We also note that the reissue application was filed 23 July 2003, more than
two years after the 19 June 2001 issue date of the 219 patent. It is arguable,
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