Appeal No. 95-2436
Application 07/773,949
This was not done. Instead, we have only the examiner's conclusion that the declaration is
unpersuasive. The examiner's curt dismissal of Dr. Klein's declaration was improper and
constitutes legal error. By statute, this board functions as a board of review, not a de novo
examination tribunal. 35 U.S.C. § 7(b)(“[t]he [board] shall . . . review adverse decisions of
examiners upon applications for patents . . .”). Here, the examiner has not presented a
position which is amenable to a meaningful review. Rather than speculate as to reasons
why the examiner found the declaration to be “unpersuasive”, we will simply reverse the
rejection as the examiner did not meet her initial burden of providing reasons of
unpatentability. In re Oetiker, 977 F.2d 1443, 1446, 24 USPQ2d 1443, 1445 (Fed. Cir.
1992).
The decision of the examiner is reversed.
REVERSED
BRUCE H. STONER, JR., Chief )
Administrative Patent Judge )
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)
)
SHERMAN D. WINTERS ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
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