In re Yamazaki, No. 12-1086 (Fed. Cir. 2012)
Annotate this CaseIn 1995, Yamazaki filed a patent application, “Improved Semiconductor Having Low Concentration of Phosphorus.” The examiner issued an obviousness-type double patenting rejection based on Yamazaki’s earlier-issued 476 patent. Yamazaki filed a terminal disclaimer in November, 1996, disclaiming the statutory term of any patent granted on the application that would extend beyond expiration of the 476 patent In December, 2003. Yamazaki later amended each claim of the 1995 application, such that, in Yamazaki’s view, the pending claims became patentably distinct over the claims of the 476 patent and the terminal disclaimer became unnecessary. Yamazaki petitioned (37 C.F.R. 1.182) for withdrawal of the recorded terminal disclaimer The PTO did not act. Notice of Allowance issued in July, 2000. With the Petition to Withdraw still pending, Yamazaki paid the issue fee; the 991 patent issued in 2001; it would have expired in 2018, given a 17-year term (35 U.S.C. 154(c)(1)); however, adopting the 476 patent expiration date gave it 35-month term. The PTO dismissed the Petition to Withdraw. Yamazaki filed a Reissue Application, to correct “errors” that rendered the 991 patent inoperative during part of the statutory term. The Board of Patent Appeals and Interferences affirmed rejection, for lack of a correctable error. The Federal Circuit affirmed.
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