Appeal No. 96-1313
Application 08/202,536
Board to decide the correctness of the examiner's decision.
The above referenced finding by the examiner is the keystone
to the rejection. If that keystone fails, so does the
rejection. Yet the majority has refused to decide this
critical issue. In my view, this leaves appellants and the
examiner in an untenable position.
As set forth in 37 CFR § 1.196(a), the affirmance by the
majority of the examiner’s decision means that the rejection
premised upon the examiner's reasoning still stands since it
was not explicitly reversed. Thus, upon return of the
application to the examiner, the examiner and appellants must
still confront the examiner's rejection in addition to the new
rejection made by the majority based upon its own reasoning.
I see no reason why we should not decide the examiner’s
rejection since it has been fully briefed. For the reasons
set forth below, I disagree with the examiner's rejection and
vote to reverse the rejection. However, without the majority
expressing its view as to the propriety of the examiner's
rejection and reasoning, consideration of this case upon its
return to the jurisdiction of the examiner by both appellants'
and the examiner is needlessly confused.
-18-18
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