Appeal No. 96-2905
Application No. 29/008,076
Patent Examining Procedure (MPEP), stating that the panel's
decision conflicted with PTO policy. The examiner further
requested that such reconsideration be carried out by an
expanded panel. An expanded eight-member panel, acting as the
Board, granted both of the examiner's requests. The expanded
panel (five new members and the original three members) issued
a majority decision in which they affirmed the examiner's
section 101 rejection, thus ruling contrary to the decision of
the original three member panel. The three members of the
original panel dissented on the merits for the reasons set
forth in their original opinion, which they augmented in a
dissenting opinion.
While Alappat never raised a due process argument, it is 9
our position that the expansion of the panel in this appeal
did not deprive the appellant of a property right without due
process of law. An appeal decided without an oral hearing
will receive the same consideration by the Board of Patent
Appeals and Interferences as appeals decided after oral
hearing. 37 CFR
9 Alappat, 33 F.3d at 1532 n. 4, 31 USPQ2d at 1548 n. 4.
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