Appeal 2007-1432
Application 09/141,186
Patent 5,549,673
with respect to the affirmed rejection, the effective date of the affirmance is
deferred until conclusion of the prosecution before the Examiner unless, as a
mere incident to the limited prosecution, the affirmed rejection is overcome.
If the Appellant elects further prosecution before the Examiner and
further prosecution does not result in allowance of the application,
abandonment or a second appeal, this application should be returned to the
Board of Patent Appeals and Interferences for entry of a final decision with
respect to the affirmed rejection, including any action on any timely request
for reconsideration thereof.
VI. CONCLUSIONS OF LAW
(1) Appellant has failed to establish that the Examiner erred in
rejecting claims 16-26 under 35 U.S.C. § 251 based on recapture.
Specifically, Appellant’s 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 16-26 are not patentable.
(3) The Examiner erred in rejecting claims 1-3 under 35 U.S.C. § 251
based on a defective reissue oath.
(4) On the record before us, claims 1-3 have not been shown to be
unpatentable.
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