Appeal No. 2006-0802
Application 10/151,141
Kratz, Administrative Patent Judge, concurring
I concur with the majority=s Decision to Remand this application to the Examiner.
However, unlike the majority, I would suggest that the examiner prepare a notification that omits
any reference to 37 CFR § 1.192(d). This is so because it is my opinion the format provisions of
37 CFR § 1.192 (c), with which such a notification is primarily concerned, would not be
applicable when a Brief is filed by an Appellant (Applicant) who is not represented by a
registered practitioner, as the record reflects to be the case here.
I write separately to further emphasize, in my opinion, that the Examiner should take
appropriate action to secure written clarification from Appellant as to the particular rejected
claims included in this appeal by Appellant. In this regard, I would urge the Examiner to notify
Appellant of the apparent inconsistency in the Brief filed August 23, 2004 concerning the appeal
status (and the consequences of such status) of rejected claims 11 through 17, 19 through 21, and
23 through 25. The inconsistency is evident from a review of the Brief and in light of the
majority=s Remand Decision Opinion. I would suggest that the Examiner should require a clear
accounting of the rejected claims that are the subject of this appeal from Appellant in order to
resolve any ambiguity in the previously submitted Appeal papers as to the claims on appeal.
I would also have suggested that the Examiner should remind/notify Appellant as to the
provisions of our Federal Regulations respecting appeals, especially 37 CFR § 1.192 (a), as in
effect at the time of the filing of Appellant’s Brief, especially in light of any substantive
deficiencies in the Brief in addressing any rejections of appealed claims. In this regard, I would
have urged the Examiner to explain to Appellant that arguments and authorities that Appellant
intends to rely on must be furnished in the Briefs. I would suggest that the Examiner inform
Appellant that all outstanding rejections of each and every appealed claim that Appellant clearly
makes a subject of this appeal should be addressed in the Briefs. I would urge the Examiner to
notify Appellant of any such deficiency in the previously filed Briefs and urge Appellant to point
out and fully explain any perceived errors in each rejection maintained by the Examiner while
referring to each rejection and each reference relied upon by the examiner.
In light of the above, I concur with the majority=s decision to REMAND this application
to the jurisdiction of the examiner for appropriate action to clarify the appeal record so as to
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