Appeal No. 1996-1080
Application No. 07/869,111
CFR § 1.196(b)(see the decision on Request for Reconsideration
dated Apr. 12, 1991, Paper No. 24).
The claims as presented in Appeal No. 90-3119 differ in
three aspects from the claims in this appeal. Claims 1
through 3 now on appeal are limited to a 6-O-
methylerythromycin A derivative where both R2 and R3 are
trimethylsilyl instead of a “substituted silyl group” or
hydrogen, “arylmethyl” is now benzyl, and “halogen” is now
chlorine. Furthermore, appellants have submitted two
Declarations by Watanabe under 37 CFR § 1.132 that were not of
record in the prior appeal. Further background information is
presented on pages 3-5 of the Brief. Accordingly, this merits
panel of the Board must begin anew, evaluating all the
arguments and evidence for and against patentability,
uninfluenced by any earlier conclusion reached by an earlier
Board upon a different record. See In re Rinehart, 531 F.2d
1048, 1052, 189 USPQ 143, 147 (CCPA 1976).
B. The Rejection of Claim 3
Since the thrust of the invention is the process of
preparation, we will first consider claim 3 on appeal. Claim
4
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