Appeal No. 2005-0841
Application No. 08/230,083
binding on this Board.23 See, for example, Willingham, Wesseler,
Richman, Wadlinger, Ball, Whittaker and Clement discussed in
Appendixes 7 and 8.
In its first decision, South Corp. v. United States, 690 F.2d
1368, 1370 & n.2, 215 USPQ 657, 657-58 & n.2 (Fed. Cir. 1982), the
Federal Circuit dealt unequivocally with the matter of binding
precedent. Sitting, en banc, the court held that it would adhere
to the body of law that existed in its predecessor courts, the
United States Court of Claims and the United States Court of
Customs and Patent Appeals (CCPA), as of September 30, 1982.
Overruling such precedent, or resolving a conflict between the two
predecessors, would require en banc consideration.24 The Federal
Circuit has faithfully observed the rule of South. Even where it
is possible that a prior decision of the CCPA would be decided
23 Under Standard Operating Procedure 2 (Revision 6) (August 10, 2005),
the following are considered precedent binding upon the Board:
1. An opinion of the Supreme Court.
2. An en banc decision of the Court of Appeals for the Federal
Circuit.
3. A decision of the Court of Appeals for the Federal Circuit, or
its predecessors, the Court of Customs and Patent Appeals (CCPA) and the
Court of Claims, which the Court of Appeals for the Federal Circuit
considers binding precedent.
4. An opinion of the Board made precedential by the procedures
contained in this or earlier versions of Standard Operating Procedure 2.
Standard Operating Procedure 2 can be found at
http://www.uspto.gov/web/offices/dcom/bpai/sop2.pdf.
24 See also UMC Elec. Co. v. United States, 816 F.2d 647, 652 n. 6, 2
USPQ2d 1465, 1468 n. 6 (Fed. Cir. 1987); United States v. Rush, 804 F.2d 645, 647
(Fed. Cir. 1986); Gindes v. United States, 740 F.2d 947, 949-50 (Fed. Cir. 1984);
Mother's Restaurant, Inc. v. Mama's Pizza, Inc., 723 F.2d 1566, 1569, 221 USPQ
394, 397 (Fed. Cir. 1983).
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