No. 76-1044. Heard June 16, 1976. Decided February 3, 1977. Rehearing and Rehearing En Banc Denied March 17, 1977. Irving Powers, John K. Roedel, Jr. St. Louis, Mo., for appellant. Raymond J. McElhannon, Norman H. Zivin, Clyde H. Haynes, New York City, William T. Rifkin, Chicago, Ill., for appellee. Appeal from the United States District Court for the Southern District of Illinois. Before SWYGERT, CUMMINGS and PELL, Circuit Judges. SWYGERT, Circuit Judge. The outcome of this appeal turns on the validity
(a) PATENT APPLICANT.-An applicant for a patent, any of whose claims has been twice rejected, may appeal from the decision of the primary examiner to the Patent Trial and Appeal Board, having once paid the fee for such appeal. (b) PATENT OWNER.-A patent owner in a reexamination may appeal from the final rejection of any claim by the primary examiner to the Patent Trial and Appeal Board, having once paid the fee for such appeal. 35 U.S.C. § 134 July 19, 1952, ch. 950, 66 Stat. 801; Pub. L. 98-622
(a) A person to whom the inventor has assigned or is under an obligation to assign the invention may make an application for patent. A person who otherwise shows sufficient proprietary interest in the matter may make an application for patent on behalf of and as agent for the inventor on proof of the pertinent facts and a showing that such action is appropriate to preserve the rights of the parties. (b) If an application under 35 U.S.C. 111 is made by a person other than the inventor under paragraph
(a) An oral hearing should be requested only in those circumstances in which appellant considers such a hearing necessary or desirable for a proper presentation of the appeal. An appeal decided on the briefs without an oral hearing will receive the same consideration by the Board as appeals decided after an oral hearing. (b) If appellant desires an oral hearing, appellant must file, as a separate paper captioned "REQUEST FOR ORAL HEARING," a written request for such hearing accompanied by the fee