Appeal 2006-3393
Application 10/270,862
For the Board to have jurisdiction over an appeal there must be a
claim rejection before the Board. See 37 C.F.R. §§ 6 and 134. In a Decision
on Petition under 37 C.F.R. § 1.181 mailed August 30, 2005, the Director of
Patent Technology Center 3600 vacated the rejections in the Final Rejection
(Decision on Petition, last page). The Examiner then issued an Advisory
Action mailed October 11, 2005 wherein those rejections were maintained.
The Examiner stated in the Advisory Action that the claim limitations upon
which the Director’s vacatur was based had been deleted by the Appellants
(October 11, 2005 Advisory Action 2). The last page of the Advisory
Action bears a signature which, the Examiner subsequently stated (Advisory
Action mailed February 2, 2006), is that of the Technology Center Director
(February 2, 2006 Advisory Action 3). The meaning of that signature is not
clear. There is no statement on the record by the Technology Center
Director that the Director’s vacatur of the Examiner’s final rejections has
been withdrawn.
We therefore remand the application for the Examiner to obtain on the
record a clarification by the Technology Center Director as to whether the
Director’s vacatur of the Examiner’s final rejections has been withdrawn.
See 37 C.F.R. § 41.50(a)(1)(2004).
We further remand the application for the Examiner to consider
applying Allport to the Appellants’ independent claims (1 and 11) as
follows, and to consider applying Allport similarly, alone or in combination
with other prior art, to the dependent claims.
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