Appeal No. 1998-3388
Application 08/370,551
Further, we would urge that the examiner reconsider the relevance of the Criddle
reference with regard to the presently claimed invention. While we have reversed the
rejection under 35 U.S.C. § 102(b) which was presented in this appeal, we would agree
with the examiner that the disclosure of Criddle may well be relevant in determining the
patentability of the present claims. We have pointed out, supra, those elements which
Criddle fails to disclose. However, we could well envision that there is other prior art
relating to the remediation of an environment contaminated with carbon tetrachloride,
which when taken in combination with the description of the Pseudomonas strain of the
present claims and the characteristics provided by Criddle, might well provide a basis
for questioning the patentability of the present claims under 35 U.S.C. § 103. In this
situation, we choose not to examine the case in the first instance and will leave to the
examiner, the consideration of the possibility of reviewing the patentability of the
present claims with a view to determine whether, that which is missing from Criddle,
may well be found in the prior art not presented in this appeal. Should the examiner
conclude, after a further review of the prior art relevant to the present invention, that
there is a reasonable basis for questioning the patentability of the pending claims, the
examiner should issue the appropriate office action setting forth in detail the basis for
that conclusion and provide appellants with the appropriate opportunity to respond
thereto. We do not authorize the filing of a supplemental Examiner’s Answer in order to
address any such new ground of rejection.
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