Appeal No. 95-2683
Application No. 07/883,912
Further-more, the PTO is within its statutory right to reject
an application at any time before issuance.
Appellants also contend that the Board is bound by the
decision in Anderson v. Natta, 480 F.2d 1392, 178 USPQ 458
(CCPA 1973), which decision awarded priority to appellants.
According to appellants, we are bound "from reaching a
different conclusion on the patentability of the claimed
subject matter to Natta et al." (page 11 of principal Brief).
However, res judicata is not applicable to the present appeal
since the court in Anderson v. Natta did not address the
rejection under 35 U.S.C. § 112, first paragraph, presently
before us. Indeed, the court expressly refused to entertain
arguments pertinent to 35 U.S.C. § 112, first paragraph, since
such arguments were not at issue "at any point below, and we
will not consider it for the first time on appeal." Anderson
v. Natta, 480 F.2d at 1399, 178 USPQ at 463.
We are also not persuaded by appellants' argument that
res judicata and collateral estoppel from the earlier
interference proceeding precludes us from reviewing the
examiner's rejections because a final judgment in an
interference is conclusive of all matters that were
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