The term "vacate", as applied to an action taken by an
appellate tribunal, means to set aside or to void. When the2
Board vacates an examiner’s rejection, the rejection is set
aside and no longer exists. The Board's decision to vacate
and remand ends the appeal and returns jurisdiction over the
application on appeal to the examiner for further action not
inconsistent with the views expressed in the opinion
accompanying the Board's decision. Appropriate subsequent
action by an examiner upon reassuming jurisdiction over the
application would include allowing or rejecting claims
previously on appeal. Obviously, if the examiner rejects a
claim, an Office Action rejecting the claim should be entered
and the applicant given a date to respond to the examiner’s
rejection. If a rejection is made (e.g., the claims have been
twice rejected ) and the applicant is dissatisfied with the3
examiner’s rejection, the applicant can again appeal the
rejection to the Board. Following a second appeal, the Board
then again can acquire jurisdiction under 35 U.S.C. § 134 and
can then decide any issue(s) involved in a second appeal.
In this application, the Board vacated the Examiner’s
rejections and remanded the application to the Examiner for
2
Black’s Law Dictionary 1075 (abridged 6th ed. 1991).
3
35 U.S.C. § 134.
3
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Last modified: November 3, 2007