Appeal No. 2000-2176
Application No. 08/436,526
Moreover, our function in the ex parte context is to review rejections. The Board
does not perform examining functions in the first instance. A terminal disclaimer is
proffered to the relevant Technology Center and the examiner, rather than to the Board.
See MPEP § 1490, “TERMINAL DISCLAIMER IN PENDING APPLICATION
PRACTICE.”
In this regard, we note the presence of a paper, attached to the request for
rehearing (and filed August 28, 2002), which purports to be a terminal disclaimer.
There is no communication from the examiner in the record with respect to the present
status of the provisional double patenting rejection,2 most likely because the Board
retained jurisdiction over the case due to filing of the instant request for rehearing.
This application is remanded to the examiner for reconsideration of the
provisional double patenting rejection in light of appellants’ submission of the above-
noted paper. In view of the remand, the present decision is not considered final for the
purposes of judicial review. If the remand results in further prosecution before the
examiner, and such prosecution does not result in allowance of the application,
abandonment, or a second appeal, or if there is no further prosecution before the
examiner, this case should be returned to the Board of Patent Appeals and
Interferences for entry of a final decision.
2 Appellants have also attached a copy of an Interview Summary provided by the examiner.
However, the Interview Summary is dated July 24, 2002, prior to filing of the paper in question.
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