Error Without Deceptive Intent : CAFC Alert

Recapture Issues in a Reissue Application

Dennis Hubbs | May 30, 2012

In Re Roger Youman and Marney Morris

May 8, 2012

Panel: Lourie, Schall and Prost. Opinion by Prost. Dissent by Lourie.

Summary:

Applicants filed a broadening reissue application within two years of the patent issuing.  The examiner rejected the claims because applicants attempted to recapture surrendered subject matter.  The Board of Patent Appeals and Interferences (BPAI) affirmed the examiner’s rejection but the Court of Appeals for the Federal Circuit (CAFC) overturned the BPAI ruling and in doing so, clarified the three step process to determine if applicant is barred by the recapture rule.


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