Appeal No. 2002-1367 Page 16
Application No. 08/981,964
should consider the evidence for what it shows, not for how it is characterized.
No injustice is done by our considering and applying the full disclosures of the
references; Appellants have had a full and fair opportunity to consider the
references and to respond to the rejection as they consider best.
In addition, the public interest is best served by ensuring that patents
issue only when they meet the statutory requirements. If we conclude, as I do
here, that the examiner has relied on references that could support a case of
unpatentability, but has made out what is not quite a legally sufficient case, we
should try to ensure that the end result—issuance or nonissuance of a patent—
comports with the statutory mandate.
I realize that our role is to review decisions made by examiners, not to
examine patent applications ourselves. We are not, therefore, required to go
beyond the grounds of rejection presented by the examiner. We are not required
to, but in a case like this, we should. I would affirm the rejection.
) BOARD OF PATENT
)
Eric Grimes ) APPEALS AND
Administrative Patent Judge )
) INTERFERENCES
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