Appeal 2007-2499
Application 09/765,221
In the Final rejection mailed September 1, 2005, from which Appellant has
appealed, the Examiner rejected claims 1-14 under 35 U.S.C. § 101 for being
directed to non-statutory subject matter. More specifically, the Examiner found
that there was “no technological innovation included in the limitations” (Final
Rejection 2). Appellant responded to this rejection in the Appeal Brief (Appeal
Br. 14-15). The Examiner, however, failed to address Appellant’s arguments with
regard to the rejection under 35 U.S.C. § 101 in the Answer and failed to state
whether the rejection had been withdrawn. As such, the status of the rejection of
claims 1-14 under 35 U.S.C. § 101 is unclear from the record before us.
Accordingly, we remand this application to the Examiner for further clarification
as to the status of the rejection of claims 1-14 under 35 U.S.C. § 101 and to
determine whether or not a new ground of rejection under 35 U.S.C. § 101 is
proper in view of the recent decision in In re Comiskey, ___ F.3d ___, 2007 WL
2728361 (Fed. Cir. 2007).
Furthermore, we note that page 22 of Appellant’s Appeal Brief is missing.
Our review of the text from the page preceding and following the missing page
indicates that the missing text more likely than not includes additional arguments
presented by Appellant. Accordingly, we remand this application to the Examiner
to enter the missing page in the record and to consider any arguments thereon.
ORDER
Accordingly, it is ORDERED that the application is remanded to the
Examiner for appropriate action in regard to the issued discussed above.
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