Appeal No. 1994-1755
Application 07/525,312
§ 1.197(b), appellants do not ask that we reconsider our reversal of the examiner's
decision. Rather, appellants request that we reconsider and withdraw the remarks made
under the “OTHER ISSUES.” We decline to do so.
In seeking rehearing, appellants do not question our authority to raise “OTHER
ISSUES” in addition to making a decision on the merits. We note that our appellate
reviewing court has taken similar action. See, e.g., In re Deuel, 51 F.2d 1552, 1560,
34 USPQ2d 1210, 1216 (Fed. Cir. 1995).
As set forth in the paragraph bridging pages 8-9 of our opinion, the issues raised
should be considered by the examiner in the first instance. We did not take and do not
take a position on the merits. We trust that upon return of the application the examiner will
take into account our decision of June 9, 1999, in its entirety as well as appellants'
comments filed in their request for rehearing and will take whatever action is deemed
appropriate.
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