Appeal 2007-1348
Application 10/650,253
1 2. In the appeal brief an elaborate argument is made to the effect that the
2 Examiner failed to follow PTO standards for claim construction. Appeal
3 Brief, pages 10-12.
4 In particular, it is said that the Examiner’s claim interpretation in this
5 case is inconsistent with claim interpretation by (1) the Examiner in other
6 cases and (2) other examiners in other cases.
7 The Examiner did not address appellants’ argument and we think
8 correctly so. The argument simply is irrelevant.
9 Our appellate reviewing court, as well as other earlier reviewing
10 courts, has made it clear for a long time that the issue in a case is whether an
11 examiner and the board erred in the case under consideration. In re Phillips,
12 315 F.2d 943, 137 USPQ 369 (CCPA 1963) (issuance of patent to third
13 party is irrelevant to patentability on direct appeal in other case even if
14 references are the same); In re Riddle, 438 F.2d 618, 169 USPQ 45 (CCPA
15 1971) (an examiner's allowance of claim in patent does not bar rejection of
16 claim in application to substantially same invention on substantially same art
17 considered in patent prosecution). See also Fessenden v. Coe, 99 F.2d 426,
18 38 USPQ 516 (D.C. Cir. 1938).
19 We have given no consideration to appellants’ argument concerning
20 alleged different interpretation by the Examiner or other examiners in other
21 cases.
11
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