Ex Parte Grady

Board of Patent Appeals and Interferences

Aug 28, 2007

10617270 (B.P.A.I. Aug. 28, 2007)

The opinion in support of the decision being entered today is not binding
precedent of the Board.

UNITED STATES PATENT AND TRADEMARK OFFICE
____________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________

Ex parte MICHAEL CHARLES GRADY
____________

Appeal 2006-2302
Application 10/617,270
Technology Center 1700
____________

Decided: August 28, 2007
____________

Before CHUNG K. PAK, PETER F. KRATZ, and
JEFFREY T. SMITH, Administrative Patent Judges.

KRATZ, Administrative Patent Judge.

ORDER REMANDING TO THE EXAMINER
This appeal includes a record that is not ripe for review and pursuant
to 37 C.F.R. § 41.50(a) (2006), we remand this application to the Examiner
to take appropriate action consistent with our comments below. 37 C.F.R.
§§ 41.35(b) and 41.50(a)(1) (2006).
Appeal 2006-2302
Application 10/617,270

The Appeal Brief filed October 27, 2005 includes a Status of
Amendments section and a Claims Appendix that reflects entry of an
Amendment after Final Rejection filed August 25, 2005 at least as to claims
1, 3, 5, 32, and 33 (Br. 2). However, an Advisory Action mailed September
15, 2005 indicates that the Amendment after Final Rejection filed August
25, 2005 was not entered. No exception as to the entry of amendments to
claims 1, 3, 5, 32, and 33 is furnished in that Advisory Action. The
Examiner’s Answer appears to be inconsistent with the file record as
reflected by the above-noted Advisory Action (Answer 3, Item 4).
This inconsistency in the record requires resolution prior to our
rendering a decision on this appeal. In addition, we note that appealed
product claims 30 and 31 have received little, if any, attention in the Final
Office Action and the Answer leaving an undeveloped appeal record with
regard thereto.
37 C.F.R. § 41.37(d) (2006) states that:
If a brief is filed which does not comply with all the
requirements of paragraph (c) of this section, appellant will be
notified of the reasons for non-compliance and given a time
period within which to file an amended brief. If appellant does
not file an amended brief within the set time period, or files an
amended brief which does not overcome all the reasons for non-
compliance stated in the notification, the appeal will stand
dismissed.

Thus, upon return of this application, the Examiner should review the
above-noted matters and take appropriate action to correct the record.
We note that Appellant’s complete position on appeal should be
presented in any amended Brief that may be filed in response to any
Notification of Defective Brief prepared and mailed by the Examiner in
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Appeal 2006-2302
Application 10/617,270

response to this Remand. Likewise, the Examiner’s complete position as to
any maintained rejections should be presented in a Substitute Answer in
response to any Amended Brief that may be filed.
This Remand to the Examiner pursuant to 37 C.F.R. § 41.50(a)(1) is
not made for further consideration of a rejection.
REMANDED

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