Appeal 2007-1119
Application 10/200,207
distinction is between a genuine error, or mistake, and a deliberate, but
subsequently found to be disadvantageous, choice." Id.
Filing an application, including filing a continuing application,
requires a number of positive steps, including determining what sort of
continuing application is to be filed, whether any preliminary amendments
are appropriate, whether the inventorship remains correct, whether
copendency is maintained, et cetera. While some cases, including certain
cases cited by Applicants, indicate that errors correctable by reissue can
arise during the filing of a continuing application, those cases also indicate
that the error was determined on the basis of a record that permitted the
finder of fact to weigh evidence for and against the alleged inadvertence of
the error.
In the present case, the only "evidence" of the nature and manner of
the alleged error is Applicants' Reissue Declaration. Although "sworn," this
amounts to mere pleading, as no facts are alleged that support the
inadvertence of the alleged error. Applicants argue:
[a]ll that occurred here was an erroneous use of a PTO
procedure (namely, the Continued Prosecution Application
Procedure), instead of a regular continuing application under
37 C.F.R. § 1.53(b), without awareness of a virtually secret
PTO policy that is in violation of the Administrative Procedure
Act because that policy is tantamount to a rule that affects
rights without proper statutory promulgation.
(Supplementary Reply Brief under 37 C.F.R. § 41.41 at 2, filed
29 November 2006.) We have already addressed the substance of
Applicants' rhetorical flourishes; the difficulty with the remainder of this
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