[Patentpractice] Continuation Broadening Reissue confirmation of my understanding

[Timothy Snowden]

I've encountered a fairly uncommon scenario and just want to run this 
thought process by all of you to double check myself. I'm cross-posting 
to designs and patent practice because it relates to both.

Assume there's a proper continuation chain of applications (all issued) 
including utilities and designs. A design patent is the only patent 
issued in the last 2 years, and so the only patent eligible for 
broadening reissue. Assume for the sake of discussion that subject 
matter recapture and original invention are not an issue here.

*QUESTION: If I file 2 applications in this order:*

 1. a proper broadening reissue application of the design patent
    (claiming a patentably distinct design that is properly supported in
    the original application), and then
 2. a /continuation/ broadening reissue (not a regular/Bauman type)
    */utility/* application

*_Would the USPTO reject the /continuation /reissue as improperly trying 
to convert from a design to a utility? (MPEP 1457) _*

*_Does anybody have any experience (practical with the USPTO's response) 
or thoughts (based on the statutes)?_*

Just to be clear: broadening reissue application #1 would be a design. 
Application #2 (continuation reissue application) would be a utility.

Here's where I'm stuck: because it is a continuation /reissue 
/application, does the inability to 'convert' apply? I can see an 
argument that it is still a reissue application of the design patent, so 
no go.

However, I can also see that:

  * there was an error in the design - applicant claimed less design
    than they should have.
  * There is no new matter because the design patent incorporated by
    reference (at least via the priority chain) the entire specification
    of the parent utility applications.
  * Assume there is no extension of time -- the utility patent 20 year
    from initial filing term would be less than the design patent 15
    year from issue term.

Thanks in advance!
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