The Federal Circuit held that it is not correctable error when an attorney makes a conscious decision regarding prosecution strategy. The attorney had failed to submit drawings with an application, and then had to choose between adding the drawings (and thus taking a later filing date) or keeping the earlier date (without the benefit of the omitted drawings). The attorney chose the former. Later, the inventor’s new attorney claimed that the predecessor’s decision was an error and wanted to use a reissue proceeding under 35 U.S.C. § 251 to claim the original filing date. The court held that a conscious decision by an attorney is not correctable error under Section 251.
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