Appeal No. 2001-1909 Page 13
Application No. 09/016,786
(Bernstein, “Vitamin B6 in Clinical Neurology”, Vitamin B6, Annals of The New
Academy of Sciences, 1990, Part V., pp. 250-260) showing the use of a vitamin
B as the sole active ingredient in treating nerve disorders.
Reason #7
Finally, appellants have filed a Declaration (paper no. 13). It has not been
considered and should have been. If during subsequent prosecution, examiner
again rejects the claims as prima facie obvious under 35 U.S.C. § 103 over prior
art, the prima facie case must be reconsidered in light of this Declaration. See
MPEP § 2141.
VACATE AND REMAND
In reviewing, on appeal, a PTO Board’s findings and conclusions, the
Federal Circuit has stated that “[f]or judicial review to be meaningfully achieved
within these strictures7, the agency tribunal must present a full and reasoned
explanation of its decision. The agency tribunal must set forth its findings and
the grounds thereof, as supported by the agency record, and explain its
application of the law to the found facts.” In re Lee, 277 F.3d 1338, 1342, 61
USPQ2d 1430, 1432-3 (Fed. Cir. 2002). “The agency tribunal must make
findings of relevant facts, and present its reasoning in sufficient detail that the
7 “5 U.S.C. §706(2) The reviewing court shall—
(2) hold unlawful and set aside agency actions, findings, and conclusions found
to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law;
* * * *
(E) unsupported by substantial evidence in a case subject to sections 556 and
557 of this title or otherwise reviewed on the record of an agency hearing
provided by statute;”
In re Lee, 277 F.3d 1338, 1342, 61 USPQ2d 1430, 1433-4 (Fed. Cir. 2002).
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