Appeal No. 2001-0624 Page 4
Application No. 08/204052
While the Brief addresses the second issue, it does not appear to address
the first. Stated differently, the brief does not contain arguments of the
appellants with respect to each of the issues presented for review in 37 CFR
§ 1.192(c)(6), and the basis therefore, with citations of the authorities, statutes,
and parts of the record relied on as required by 37 CFR § 1.192(c)(8). As set
forth in 37 CFR § 1.192(d) “if a brief is filed which does not comply with all the
requirements of paragraph (c), the appellant will be notified of the reasons for
noncompliance.” On this record, appellants were not so notified. Accordingly,
we remand the application to the examiner to take appropriate action.
OTHER ISSUES
While we take no action on the merits of this appeal, we make the
following observations:
There are several instances in the Answer where the examiner makes an
unsupported finding of fact. See e.g., Answer, page 4 “[i]t is well known in the art
that there are certain integral aspects to making and using a transgenic mouse”;
Answer, page 5, “the art teaches that ALS … is associated with certain mutated
SOD-1 polypeptides.” Upon further prosecution, we encourage the examiner to
support her findings of fact with appropriate evidence. Findings of fact, as well
as the conclusions of law, must be made in accordance with the Administrative
Procedure Act, 5 U.S.C. 706 (A), (E) (1994). See Zurko v. Dickinson, 527 U.S.
150, 158, 119 S.Ct. 1816, 1821, 50 USPQ2d 1930, 1934 (1999).
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