<A required change in the wording of the claim, during re-exam, will most likely eliminate past damages on that modified claim but allow infringement damages on future infringement of that modified claim, starting with the recertification date. >

I believe any analysis of the claim changes will prove you wrong. In one of the pacers I recall us arguing that the 336 changes did not change the scope. In reading the last submission to the PTO on the 749 we stated that the scope remained the same. IMO, and the courts, it is the scope of the patent, not the words, that is important.

http://www.oppedahl.com/apl/westvaco.pdf

II. ANALYSIS A. Damages

Westvaco argues that IPC is not entitled to damages before the date of the reissue patent because the claims in the reissue patent are not identical to the claims of the original patent. The first paragraph of section 252 of title 35 provides: The surrender of the original patent shall take effect upon the issue of the reissued patent, and every reissued patent shall have the same effect and operation in law, on the trial of actions for causes thereafter arising, as if the same had been originally granted insuch amended form, but in so far as the claims of the original and reissued patents are identical, such surrender shall not affect any action then pending nor abate any cause of action then existing, and the reissued patent, to the extent that its claims are identical with the original patent , shall constitute a continuation thereof and have effectcontinuously from the date of the original patent. 35 U.S.C. Section 252 (1988) (emphasis added). [1] This court has determined that the term "identical" as used in section 252, "means, at most, 'without substantive change.' " Seattle Box Co. v. Industrial Crating & Packing , 731 F.2d 818, 827-28, 221 USPQ 568, 574 (Fed. Cir. 1984) (emphasis in original). Moreover, the court has stated that "it is the scope of the claim that must be identical, not that the identical words must be used." Slimfold Mfg. Co., Inc. v. Kinkead Indus., Inc. ,810 F.2d 1113, 1115, 1 USPQ2d 1563, 1565 (Fed. Cir. 1987). A determination of whether the scope of a reissue claim is identical with the scope of the original claim is a question of law, which we review de novo. Tillotson, Ltd. v. Walbro Corp., 831 F.2d 1033, 1037, 4 USPQ2d 1450, 1452 (Fed. Cir. 1987).

Opty