Appeal 2007-0137
Application 09/489,655
In light of the unclear status of the Neiman Declaration and the Daskal
Declaration, both of which are relied upon by Appellant in the Appeal Brief
in argument against the standing rejections, this panel finds that it would be
imprudent to decide this appeal without clarification as to their status.
Accordingly, this application is remanded to the Examiner, pursuant to 37
C.F.R. § 41.50(a)(1), for clarification as to the status of the Neiman
Declaration and the Daskal Declaration, including a statement as to whether
they have been entered and considered and, if they have been entered and
considered, an explanation as to how they factored into the Examiner's
analysis of the patentability of the claimed subject matter in weighing the
totality of the evidence used to reach the ultimate conclusion of obviousness.
See Richardson-Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1483, 44 USPQ2d
1181, 1187 (Fed. Cir. 1997).
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