Appeal No. 97-2523
Application 08/337,823
The “cloud” the appellants refer to as covering any
patent which may issue from the appellants’ application is
fictitious. Our statement reflects a similar expression by
the Court of Appeals for the Federal Circuit in In re Fisher,
58 CCPA 1419, 1420 (CCPA 1971) (on petition for rehearing):
As we have often pointed out, we pass only on
rejections actually made and do not decree the
issuance of patents. After our decision in an ex
parte patent case, the Patent Office can always
reopen prosecution and cite new references, in which
limited sense our mandates amount to remands.
The Board does not prosecute or examine applications. Rather,
the examiners do. Consequently, our reversal of the
examiner’s rejection also amounts to a de facto remand.
The appellants seem to regard our opinion as
unnecessarily saying something more about the patentability of
the appellants’ claims than we should have. To the contrary,
our statement keeps the opinion from being read or construed
as saying something more about the patentability of the
appellants’ claims than we have.
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