Ex Parte Wellerdieck et al - Page 13

                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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