further action not inconsistent with the views expressed in
the opinion. In doing so, the Board did not express an
opinion as to whether the Examiner’s rejections were
ultimately right or wrong. Indeed, when an examiner's
rejection is vacated, the Board does not take an ultimate
position on the correctness of an examiner's rejection. The
rejection may or may not have been correct. Most of the time
a rejection is "vacated" because the issue sought to be
reviewed has not been sufficiently developed to permit
meaningful review. The record in connection with this
application was determined to be insufficiently developed to
permit meaningful review. Accordingly, the Examiner's
rejection was "vacated" and a remand was ordered to permit the
Examiner to further consider the application and, if a
rejection was again to be made, to properly develop the issues
for review.
Without making another rejection, the Examiner returned
the application to the Board after sending a communication to
Applicants. It was not procedurally proper for the Examiner
to have sent the case back to the Board at this stage of the
prosecution. The Board no longer has jurisdiction over the
4
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Last modified: November 3, 2007