stated in our opinion, however, that examiner’s conclusions are
not binding on the Board. See Glaxo Wellcome, Inc. v. Cabilly,
56 USPQ2d 1983, 1984 (BPAI (ITS) 2000). (Neither the Board nor a
party are bound by an ex parte decision made during prosecution
by another party. A motion in an interference is not an appeal
from the examiner’s decision, but an independent request to the
Board). The examiner’s statement is not under review.
In our decision, the panel commented on the examiner’s
statement, although it need not have done so. We stated that:
Bouzida has failed to demonstrate that the examiner
incorrectly interpreted Beamer claim 1 (the count) in the
same manner as Bouzida. That is, Bouzida has failed to
direct us to evidence that demonstrates that the examiner
interpreted Beamer claim 1 to have louvers with at least two
angles. Based on the record before us, the examiner
interpreted Beamer claim 1 as having louvers with at least
three angles. Therefore, the examiner’s conclusion that
Beamer claim 2 and Beamer claim 3 should correspond to the
count would make sense, given that Beamer claim 2 and claim
3 recite louvers having at least three angles with other
minor variations (Paper 51 at 21).
Bouzida argues that the panel erred in determining that
Bouzida failed to demonstrate that the examiner incorrectly
interpreted Beamer claim 1 (the count) in the same manner as
Bouzida. Bouzida presents new arguments as to how the examiner
probably interpreted the claims involved in the interference
11
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