Ex Parte Ritter et al

Board of Patent Appeals and Interferences

Jun 17, 2009

09951491 (B.P.A.I. Jun. 17, 2009)

UNITED STATES PATENT AND TRADEMARK OFFICE
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BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
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Ex parte JOHN DAVID RITTER, PETER JULIUS FREYMARK,
JOSEPH HOWARD GATEWOOD, MICHAEL JED GINSBURG,
JOHN ROBERT PREVIS, EVAN INDIANER,
and CHRISTOPHER M. UMBEL
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Appeal 2009-001823
Application 09/951,491
Technology Center 2100
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Mailed: June 17, 2009
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Before DALE M. SHAW, Chief Appeals Administrator

ORDER REMANDING TO THE EXAMINER
This application was electronically received by the Board of Patent
Appeals and Interferences on November 12, 2008. A Docketing Notice was
mailed on November 25, 2008 and an oral hearing was held on May 20,
2009. A review of the application revealed that the appeal is not ready for a
decision on the merits. Accordingly, the application is herewith being
remanded to the Examiner to address the following matter:
Appeal 2009-001823
Application 09/951,491

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APPEAL BRIEF, APPEALED CLAIMS
Appellants have not appealed all rejected claims. Specifically, a
review of the Grounds of Rejection on the record finds that rejections are
outstanding for the following pending claims: 1-46. The rejected claims that
have not been appealed and/or argued are claims 1-8, 23-31, 33, 34, and 36-
40.

DISCUSSION
The Board of Appeals and Interferences (Board), in Ex parte Ghuman,
88 USPQ2d 1478 (BPAI 2008) (precedential), held that in appeals where
rejected claims are expressly withdrawn, or are implicitly withdrawn by not
presenting arguments in support of patentability, the Board will remand the
application to the Examiner with instructions to cancel the expressly or
implicitly withdrawn claims. See also Manual of Patent Examining
Procedure (MPEP) § 1215.03 (8th ed. Rev. 6, Sept 2007).
Accordingly, it is ORDERED that the application is remanded to the
Examiner:
1) to have the appellant enter a paper canceling claims 1-8, 23-31, 33,
34, and 36-40; and rewriting the dependant claims into independent form;
2) upon entry of the paper, to return the application to the Board for
the consideration of appealed claims; and
3) for such further action as may be appropriate.
If there are any questions pertaining to this Order, please contact the
Board of Patent Appeals and Interferences at 571-272-9797.

Appeal 2009-001823
Application 09/951,491

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