Ex Parte Boland et al

Board of Patent Appeals and Interferences

Apr 20, 2010

09735835 (B.P.A.I. Apr. 20, 2010)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________________

Ex parte VERNON KEITH BOLAND, KATHY DEAN,
RONALD A. RUSH JR., ROBERT N. JOSEPHSON II
and DENNIS A. PARKER
____________________

Appeal 2009-011897
Application 09/735,835
Technology Center 3600
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Decided: April 20, 2010
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Before LINDA E. HORNER, ANTON W. FETTING
and STEVEN D.A. McCARTHY, Administrative Patent Judges.

McCARTHY, Administrative Patent Judge.

DECISION ON APPEAL

The Appellants appeal under 35 U.S.C. § 134 from the Examiner’s
decision rejecting claims 1-5, 7-10, 13, 15-18 and 20-24 under 35 U.S.C.
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§ 102(e) as being anticipated by Gardenswartz (US 6,298,330 B1, issued
Oct. 2, 2001). We have jurisdiction under 35 U.S.C. § 6(b).
Appeal 2009-011897
Application 09/735,835

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We DISMISS the appeal as to claims 1-5, 7-10, 13, 15-18 and 20-24.
The Examiner finally rejected claims 1-5, 7-10, 13, 15-18 and 20-24
in an Office Action mailed May 19, 2005. The Appellants appealed from
the final rejection of these claims September 23, 2005. The appeal was
docketed as Appeal 2008-2634 on April 4, 2008. On September 17, 2008,
this panel remanded the appeal to the Examiner.
The Remand Order stated that, “if the Examiner chooses to maintain
the rejection of claims 1-5, 7-10, 13, 15-18 and 20-24, the Examiner shall
prepare a Supplemental Examiner’s Answer which clarifies the statutory
basis for the rejection of the appealed claims and provides an opportunity for
the Appellants to respond.” (Remand Order at 5). The Remand Order
specifically stated that the remand was “made for further consideration of a
rejection. Accordingly, 37 C.F.R. § 41.50(a)(2) applies if a supplemental
examiner’s answer is written in response to this remand by the Board.”
(Remand Order at 5). The Examiner mailed a Supplemental Examiner’s
Answer on January 12, 2009.
Pursuant to 37 C.F.R. § 41.50(a)(2) (July 1, 2007), the Appellants
were required to respond to the Supplemental Examiner’s Answer within
two months in either of two ways: 1) reopen prosecution, see 37 CFR
§ 41.50(a)(2)(i); or 2) request that the appeal be maintained by filing a reply
brief as set forth in 37 CFR 41.41, see 37 CFR § 41.50(a)(2)(ii), “to avoid
sua sponte dismissal of the appeal as to the claims subject to the rejection for
which the Board has remanded the proceeding.” According to the record
before us, the Appellants do not appear to have exercised either option.
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Appeal 2009-011897
Application 09/735,835

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DECISION
We DISMISS the appeal as to the claims subject to the rejection for
which the Board has remanded the proceeding, namely, claims 1-5, 7-10, 13,
15-18 and 20-24. This dismissal includes all claims on appeal.

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Klh

JAMES M. STOVER
TERADATA CORPORATION
2835 MIAMI VILLAGE DRIVE
MIAMISBRUG, OH 45342
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