Appeal No. 96-2905
Application No. 29/008,076
least three," Congress expressly granted the Commissioner the
authority to designate expanded Board panels made up of more
than three Board members. In re Alappat, 33 F.3d 1526, 1532,
31 USPQ2d 1545, 1547 (Fed. Cir. 1994) (en banc). As set forth
by the court
There is no evidence in the legislative history of
Section 7, or Title 35 as a whole, clearly indicating
that Congress intended to impose any statutory
limitations regarding which Board members the
Commissioner may appoint to an expanded panel or when the
Commissioner may convene such a panel. [Alappat, 33 F.3d 8
at 1532, 31 USPQ2d at 1548] [emphasis ours].
In Alappat the original three member panel of the Board
reversed the examiner's non-statutory subject matter
rejection. The examiner then requested reconsideration of
this decision, pursuant to section 1214.04 of the Manual of
8As stated in Alappat, 33 F.3d at 1532, n. 3, 31 USPQ2d
at 1548, n. 3, "The Commissioner has interpreted his authority
to convene an expanded panel as granting him the authority to
expand a three-member panel to include additional Board
members after oral hearing. See e.g., Ex parte Kuklo, 25
USPQ2d 1387, 1388 (Bd. Pat. App. & Inter. 1992) (five-member
panel); Larson v. Johenning, 17 USPQ2d 1610, 1610 (Bd. Pat.
App. & Inter. 1991) (five-member panel); Ex parte Lyell, 17
USPQ2d 1548, 1549 (Bd. Pat. App. & Inter. 1990) (five-member
panel); Ex parte Remark, 15 USPQ2d 1498, 1498 (Bd. Pat. App. &
Inter. 1990) (five-member panel); Ex parte Kumagai, 9 USPQ2d
1642, 1643 (Bd. Pat. App. & Inter. 1988) (five-member panel)."
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