Appeal No. 95-2683
Application No. 07/883,912
have presented arguments of a legal nature that are applicable
to all the examiner's rejections. Appellants contend that
their count in an earlier interference proceeding of the
present invention is of the same breadth as claim 11 presently
on appeal and, therefore, since the interference count was
considered allowable by Examiner Schoffer, Manual of Patent
Examining Procedure (MPEP) § 706.04 warrants our reversal of
the examiner's rejection. In relevant part, appellants rely
upon the language of the MPEP which states "[i]n general, an
examiner should not take an entirely new approach or attempt
to reorient the point of view of a previous examiner . . ."
We do not subscribe to appellants' position. The MPEP
provides general guidance to the Examining Corps, and such
guidance is not tantamount to a proscription on an examiner's
entry of a new rejection of an allowed claim. While the
examiner's rejection may be a petitionable matter to the
Commissioner of the U.S. Patent and Trademark Office (PTO),
our scope of review does not extend to such matters. The
guidance given by the relevant section of the MPEP can not
serve to preclude our review of the merits of the examiner's
rejection before us, or mandate our reversal of the rejection.
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