Appeal 2007-0339
Application 09/872,600
The Examiner does not allege, let alone show, that the addition of
AAPA or Gasparik cures the aforementioned deficiency of Vivo and
Alexandria. Therefore, we also reverse the rejections of claims 11, 22, 32-
34, 42, 43, and 51.
The "Appellants respectfully request that the Board overturn the
rejection and allow independent claims 1, 21, 23, 35, 44, 52, and 53, and the
claims that depend therefrom." (Appeal Br. 15.) They also "request that the
Board withdraw the obviousness rejections of claims 11, 22, and 34," (id.
20), and "withdraw the obviousness rejections in relation to claims 32-34,
42, and 51." (Id. 21.) "Additionally, [the] Appellants respectfully request
that the Board direct the Examiner to allow these claims." (Id.)
In an ex parte appeal, however, the Board "is basically a board of
review C we review . . . rejections made by patent examiners." Ex parte
Gambogi, 62 USPQ2d 1209, 1211 (B.P.A.I. 2001). We lack authority to
direct an examiner to withdraw an Office action or to allow claims. It is
patent examiners who have the authority to withdraw their rejections,
M.P.E.P. §§ 707.07(e), 1004, 1005 (8th ed., 4th rev. Oct. 1005), 3 and to
allow claims. Id. at §§ 1005, 1302.13.
3 We cite to the version of the Manual of Patent Examining Procedure in
effect at the time of the Appeal Brief.
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