Ex Parte Bird

Board of Patent Appeals and Interferences

Feb 26, 2009

08862039 (B.P.A.I. Feb. 26, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte DAVID G. BIRD
____________

Appeal 2007-4289
Application 08/862,039
Technology Center 3600
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Mailed: February 26, 2009
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Before DALE M. SHAW, Chief Appeals Administrator

ORDER DISMISSING APPEAL
This reissue application was electronically received at the Board of
Patent Appeals and Interferences on September 6, 2007 and is a reissue of
U.S. Patent 5,418,537 (the ‘537 patent). A docketing notice was mailed and
Appeal No. 2007-4289 was assigned on September 11, 2007. A review of
the application has revealed that the ‘537 patent expired as of June 20, 2007
for failure to pay maintenance fees. Accordingly, the appeal of this reissue
Appeal 2007-4289
Application 08/862,039

2
application is herewith dismissed. Dismissal of the appeal in this reissue is
appropriate pursuant to the following,
The filing of a reissue application does not alter the schedule of
payments of maintenance fees on the original patent. If
maintenance fees have not been paid on the original patent as
required by 35 U.S.C. 41(b) and 37 CFR 1.20, and the patent
has expired, no reissue patent can be granted. 35 U.S.C. 251,
first paragraph, only authorizes the granting of a reissue patent
for the unexpired term of the original patent. Once a patent has
expired, the Director of the USPTO no longer has the authority
under 35 U.S.C. 251 to reissue the patent. See In re Morgan,
990 F.2d 1230, 26 USPQ2d 1392 (Fed. Cir. 1993).

Manual of Patent Examining Procedure (MPEP) § 1415.01 (8th ed, rev. 7,
July 2008).
Accordingly, it is ORDERED that the appeal which was filed on
January 24, 2001 be dismissed.
The application is being returned to the Examiner for further action as
may be appropriate.
If there are any questions pertaining to this dismissal, please contact
the Board of Patent Appeals and Interferences at 571-272-9797.

lae

Donald S. Dowden
COOPER & DUNHAM
1185 Avenue of the Americas
New York, NY 10036