Appeal No. 2004-2221 Page 4
Application No. 09/731,412
The instant application has been designated as a divisional of parent
application 09/255,179, now U.S. Patent 6,423,345. Appellants noted in the
Reply Brief that “the parent application, claiming the matrices per se, were
allowed by this same examiner and have now issued as U.S. Patent No.
6,423,345. This patent was allowed over the same art cited against the claims to
the method of use of the matrix here on appeal.” Id. at 4-5. In response, the
examiner noted the reply brief, but did not respond to appellants’ comments.
If prosecution is resumed, the examiner should state for the record why if
the matrices (products) are patentable, the method of using those matrices are
not. Moreover, if the examiner were to issue such a rejection, the rejection would
appear to require the signature of the Technology Center Director. Cf. Manual of
Patent Examining Procedure (MPEP) § 2307.02 (8th ed., Revision 2, May 2004).
CONCLUSION
Because the examiner failed to set forth a prima facie case of anticipation,
it is reversed.
REVERSED
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