tag:blogger.com,1999:blog-6733236595417664807.post2958044523108192605..comments2024-03-05T06:00:22.338-05:00Comments on All Things Pros: Follow-up to Ex parte Cogdill - Examiner introduces "equivalent" circuit diagramKaren G. Hazzahhttp://www.blogger.com/profile/14864564225463528630noreply@blogger.comBlogger56125tag:blogger.com,1999:blog-6733236595417664807.post-75574192227767410492013-07-09T10:51:31.527-04:002013-07-09T10:51:31.527-04:00>See first full paragraph of page 5 of the deci...>See first full paragraph of page 5 of the decision.<br /><br />Which says: <br />The Examiner’s reliance upon Fig. A is in error as it is a figure created by the Examiner which is not supported by Thompson’s disclosure and contradicts Thompson’s Figure 1.3<br /><br />This doesn't quite say Examiner's cannot "create Figures". Looks like the real issue is that the figure isn't accurate. <br /><br />So don't argue an annotated figure is "not prior art", and instead argue what's wrong with the Examiner's figure??Karen G. Hazzahhttps://www.blogger.com/profile/14864564225463528630noreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-10935231684993622512013-07-09T10:02:49.329-04:002013-07-09T10:02:49.329-04:00http://e-foia.uspto.gov/Foia/ReterivePdf?system=BP...http://e-foia.uspto.gov/Foia/ReterivePdf?system=BPAI&flNm=fd2011006769-07-03-2013-1<br /><br />See first full paragraph of page 5 of the decision.<br /><br />ThomasPaineAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-27404976467892144602013-05-14T08:46:14.642-04:002013-05-14T08:46:14.642-04:00Recent PTAB decision involving an "annotated&...Recent PTAB decision involving an "annotated" figure in 10/513,531.<br /><br />ThomasPaineAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-28524340018340117732013-04-17T09:27:04.414-04:002013-04-17T09:27:04.414-04:00This is why you, and so, so many examiners, are te...This is why you, and so, so many examiners, are terrible at the job. Until you learn to reason objectively from the evidence, and write effectively to persuade others that your reasoning and conclusions are correct (i.e. supported by a preponderance of the evidence), you'll never be doing anythnig more than what you, and so, so many examiners, are doing right now: churning out garbage OA's to get your counts. But as the PTO rewards you for that, and not for doing actual quality work, I can't fault you.<br /><br />"The only reason you're in the situation of having gotten a rejection is because the examiner was persuaded by his own reasoning."<br /><br />This made me laugh out loud. <br /><br />Thanks. <br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-38763208909652560092013-04-16T14:22:55.106-04:002013-04-16T14:22:55.106-04:00"So as I'm obligated to respond in writin..."So as I'm obligated to respond in writing if I still want the patent, why not skip all that and just argue that the rejection fails the ultimate burden of persuasion? "<br /><br />As much as I agree with your overall approach and applaud you for taking this enlightened route one small thing you must remember is that the burden of persuasion initially is only for the examiner to convince himself. Until you're discussing transfer to the jurisdiction of the board you simply cannot rely on the examiner spontaneously being unpersuaded by his own initial reasoning. The only reason you're in the situation of having gotten a rejection is because the examiner was persuaded by his own reasoning. <br /><br />You can of course try to argue that the burden of persuasion shouldl be relative to whether or not a reasonable judge/jury/whatever other thing other than your patent examiner would make the same determination. But good luck with that one because as of that moment the responsibility lies with the examiner and nobody else. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-35389895704731532452013-04-16T14:05:16.275-04:002013-04-16T14:05:16.275-04:00"Whatever. In re Jung was a gift to the PTO f..."Whatever. In re Jung was a gift to the PTO from the greedy a$$holes at SKGF, and Lovin was another gift from a lifer examiner/SPE turned patent agent at BT"<br /><br />I <3 those gifts. Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-81264855771211125642013-04-12T20:39:28.844-04:002013-04-12T20:39:28.844-04:00Also odd that you would use the "idiot" ...Also odd that you would use the "idiot" moniker in relation to a Board decision that was eventually affirmed by the Supreme Court. Moreover, the citation aptly illustrates the admin. law concept of the effect of "guidelines" as opposed to statutes or regulations. (But also relevant to when an attorney tries to invoke a rule he knows little about.)<br /><br />"From the movie Pirates of the Caribbean (Disney 2003):<br /><br />Elizabeth: You have to take me to shore! According to the Code of the Order of the Brethren.<br /><br />Barbossa: First, your return to shore was not part of our negotiations nor our agreement, so I 'must' do nothin'. And secondly, you must be a pirate for the pirate's code to apply, and you're not. And thirdly, the code is more what you call guidelines than actual rules. Welcome aboard the Black Pearl, Miss Turner."<br /><br />So your position is -- it's a bad movie? The Supremes didn't seem to think so.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-90760776753190827522013-04-12T17:28:14.183-04:002013-04-12T17:28:14.183-04:00Just exposing your logic for what it is.
All men ...Just exposing your logic for what it is.<br /><br />All men are mortal.<br /><br />Socrates is a man.<br /><br />Therefore, all men are Socrates.<br /><br />Why all this vitriol against the PTO, pookie? The dolts just can't appreciate how brilliant you really are?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-38987592257005043052013-04-12T17:11:05.247-04:002013-04-12T17:11:05.247-04:00"Just exposing your logic for what it is.&quo..."Just exposing your logic for what it is."<br /><br />With that ridiculous analogy? <br /><br />Lulz<br /><br />Keep up the record breaking outstanding quality work.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-35894102863991202052013-04-12T16:49:31.427-04:002013-04-12T16:49:31.427-04:00"Comparing APJ's to Fed. Cir. judges?&quo..."Comparing APJ's to Fed. Cir. judges?"<br /><br />Nope. Just exposing your logic for what it is.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-10040843524178061722013-04-12T16:42:24.412-04:002013-04-12T16:42:24.412-04:00Comparing APJ's to Fed. Cir. judges? That'...Comparing APJ's to Fed. Cir. judges? That's so adorable.<br /><br />Keep up the record breaking outstanding quality work.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-82060842645933422682013-04-12T14:13:08.802-04:002013-04-12T14:13:08.802-04:00"Like the one idiot who cited a Disney movie ..."Like the one idiot who cited a Disney movie for his decision."<br /><br />Who was the idiot who cited Alice in Wonderland for his decision? Oh, yeah, it was Giles Rich. Maybe you can get rid of him too, while you're at it. Wait, what? Too late?<br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-10966574933304064722013-04-12T13:35:19.649-04:002013-04-12T13:35:19.649-04:00I'm aware of it. I'm also aware that more...I'm aware of it. I'm also aware that more than quite a few people over there see it as cover for doing a sh!tty job. I'm also very aware that many over there wear their willful ignorance triumphantly as a badge of honor. Like the one idiot who cited a Disney movie for his decision.<br /><br />Keep up the great work.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-71178609839613021332013-04-12T13:28:22.256-04:002013-04-12T13:28:22.256-04:00"Whatever."
Pithy, concise, powerful, p..."Whatever."<br /><br />Pithy, concise, powerful, persuasive. Obviously a great educator.<br /><br />"Keep up the record breaking outstanding quality work you're doing over there."<br /><br />Thank you. That's nice to hear from time to time. At least you seem to be aware of the PTO's affirmance rate at the Federal Circuit.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-13405640171908802922013-04-12T13:08:47.005-04:002013-04-12T13:08:47.005-04:00Whatever. In re Jung was a gift to the PTO from t...Whatever. In re Jung was a gift to the PTO from the greedy a$$holes at SKGF, and Lovin was another gift from a lifer examiner/SPE turned patent agent at BT. The patent bar has its hacks. I've been saying that for years.<br /><br />I was amused to see Steve Morsa, a pro se applicant, educate some willfully ignorant APJ's recently. Of course, I'm sure we're still gonna see a continuous stream of decisions citing In re Pearson flowing out of the PTAB. Yo know what they say, you can lead a horse to water...<br /><br />Some day you'll truly appreciate what an easy gig you've got. You can be as wrong as it's possible to be, but there are no consequences. Just ask those 3 APJ's who got it wrong on all five non-analogous references in In re Klein, and the APJ's who got it wrong in In re Stepan Co. and In re Leithem, etc.<br /><br />Keep up the record breaking outstanding quality work you're doing over there.<br /><br />Regards,<br /><br />TommyAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-56187340975122679972013-04-12T12:22:18.072-04:002013-04-12T12:22:18.072-04:00"But like I said, half the Board is still lif..."But like I said, half the Board is still lifer APJ's and even many of the new hires are former patent prosecutors who also aren't that familiar with the application of concepts like burden, evidentiary standards, admin law, etc. to the field of patent prosecution, and practice before the PTAB in ex parte proceedings is your, mine and our opportunity to educate them. It's also our obligation."<br /><br />Thanks for taking the time to educate us. But the PTO already got quite a lesson about burden, evidentiary standards, admin law, etc. in In re Lovin and In re Jung. Wait, what? Never mind.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-56330156473195987002013-04-12T11:50:11.349-04:002013-04-12T11:50:11.349-04:00"My overall take is that unless your client i..."My overall take is that unless your client is prepared to go to the Fed Cir, admin law isn't going to help much. Although perhaps showing your knowledge of admin law is a signal to the Board they should take you seriously because you know your stuff and won't be trifled with? OTOH, I've seen a few Applicants try this tactic recently -- fill the Brief with *tons* of admin law stuff -- and it hasn't worked at the Board. Perhaps that's a topic for another post."<br /><br />Not gonna disagree with you. But like I said, half the Board is still lifer APJ's and even many of the new hires are former patent prosecutors who also aren't that familiar with the application of concepts like burden, evidentiary standards, admin law, etc. to the field of patent prosecution, and practice before the PTAB in ex parte proceedings is your, mine and our opportunity to educate them. It's also our obligation. <br /><br />Regards,<br /><br />Tommy Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-31335746604476024372013-04-12T11:38:47.594-04:002013-04-12T11:38:47.594-04:00I used to argue "fails to establish a prima f...I used to argue "fails to establish a prima facie case" in almost every response, but have almost stopped doing that in favor of simply arguing what In re Caveney and In re Oetiker say: the burden of proof (i.e. of persuasion) is a preponderance of the evidence (i.e. more likely unpatentable than patentable) and remains on the examiner, and the Board too if they affirm, throughout the prosecution. As I'm obligated to respond in writing by section 132 and Rule 111, I just go right to the point and explain why the rejection ultimately fails. And as we all know from law school, and from Black's, the burden of persuasion remains on one party throughout the proceeding and never shifts. That's why I've started arguing it instead of PF case, which does shift the burden. To my mind, why bother arguing whether the PF case burden has been shifted when you can just argue the ultimate burden (which never shifts from the examiner) has not been met, and explain why of course. <br /><br />"Or burden of production?"<br /><br />Good point. I went back and read J. Plager's concurrence from Oetiker, which I think is an excellent explanation of the PF case, and goes like this:<br /><br />"Specifically, when obviousness is at issue, the examiner has the burden of persuasion and therefore the initial burden of production. Satisfying the burden of production, and thus initially the burden of persuasion, constitutes the so-called prima facie showing. Once that burden is met, the applicant has the burden of production to demonstrate that the examiner's preliminary determination is not correct. The examiner, and if later involved, the Board, retain the ultimate burden of persuasion on the issue."<br /><br />So a PF case is made when the examiner meets his/her burden of production. And as we all know from law school, a party meets its burden of production when it presents enough evidence to prevent the the entry of summary judgment against it. So I would submit that the failure to present a PF case occurs when no reasonable panel of APJ's (good luck finding one of those!) could affirm the rejection with nothing more from applicant than the filed application. In other words, to my mind, arguing the failure of the examiner to establish a PF case is essentially the same as arguing that you are entitled to summary judgment of patentability. As critical as I am of the examining corps' work product, even I think this is a relatively rare occurrence (although I have seen my share in 14 years of practice!). So as I'm obligated to respond in writing if I still want the patent, why not skip all that and just argue that the rejection fails the ultimate burden of persuasion? Cut to the chase, so to speak. <br /><br />Thanks for making me rethink this. I appreciated the exercise.<br /><br />BTW, this is ThomasPaine from that other site. I'll sign my posts at the bottom from now on.<br /><br />Regards,<br /><br />Tommy Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-55581784817220544732013-04-11T17:33:57.693-04:002013-04-11T17:33:57.693-04:00>I don't think you're an idiot for thin...>I don't think you're an idiot for thinking about these issues.<br /><br />Good to hear. The comment thread was starting to feel a bit adversarial -- though perhaps my skin is too thin today. <br /><br />>you tend to be too deferential to the examiners and the PTO<br /><br />Hmm. Well, of course I'd like to think I'm not "too" deferential. But yeah, my aim is mostly to win at the Board, and I'm not focusing too much on the Fed Cir. It's important to me to understand how the Board interprets case law so that I can choose/craft arguments appropriately -- even if others are convinced the Board is wrong and would be overturned by the Fed. <br /><br />My overall take is that unless your client is prepared to go to the Fed Cir, admin law isn't going to help much. Although perhaps showing your knowledge of admin law is a signal to the Board they should take you seriously because you know your stuff and won't be trifled with? OTOH, I've seen a few Applicants try this tactic recently -- fill the Brief with *tons* of admin law stuff -- and it hasn't worked at the Board. Perhaps that's a topic for another post. <br />Karen G. Hazzahhttps://www.blogger.com/profile/14864564225463528630noreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-74204468721201199102013-04-11T15:19:21.926-04:002013-04-11T15:19:21.926-04:00"...the Examiner has gone from permissible co..."...the Examiner has gone from permissible commentary or explanation about a figure to impermissible making stuff up."<br /><br />Agreed. But examiners do that all the time without making up new drawings. I can't tell you how many interviews I've had with examiners where they blurt out, "But if the reference..."<br /><br />Here's a clue to all of the examiners out there: if your reasoning/argument/explanation starts with "But if the reference..." then you've already lost. Well, only if the applicant isn't using cut rate hacks to prosecute their applications. Which unfortunately far too many are. <br /><br />"Doesn't make me an idiot for thinking about these issues."<br /><br />I don't think you're an idiot for thinking about these issues. I appreciate your blog and the work you put into it and the issues you raise. I do think that you tend to be too deferential to the examiners and the PTO, but I also think a lot of practitioners are. I see a reluctance from a lot of practitioners to argue issues like burden of proof, evidentiary standards, and administrative law. With some I think it's because they either don't understand the issues themselves, or if they do understand them in the abstract manner the issues are taught in law school they don't understand them in the context of ex parte patent prosecution, or simply haven't thought about how they should be applied. I also get the sense that a lot of practitioners think it's not productive to get "too lawyerly" with examiners and that it's better to argue the "technical merits" of the rejection as a way to allowance. I disagree with this approach for a lot of reasons.<br /><br />But gotta go right now. <br />Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-48210185346123414692013-04-11T15:10:33.160-04:002013-04-11T15:10:33.160-04:00>Routine assertions by examiners about
>wha...>Routine assertions by examiners about <br />>what a ref teaches that are not based on <br />>or supported by a preponderance of the <br />>evidence are meaningless <br /><br />I wouldn't characterize them as meaningless. Such assertions are in the record and prosecutors respond to them. Sure, it's also true that in the end such statements don't amount to much, so they're meaningless in that sense -- precisely because you've stipulated that the assertions aren't supported by a preponderance of evidence.<br /><br />>and incapable of sustaining examiner's burden.<br /><br />Burden of proof? As in assertions not supported by preponderance of the evidence lose when presented to the fact finder? Well, yeah, that's true -- by definition. <br /><br />Or burden of production? As the Applicant doesn't even have to respond to assertions not supported by preponderance evidence? Surely that's not right. Examiners routinely make assertions and prosecutors routinely respond to them, because most of these assertions do constitute a Prima Facie case. <br /><br />But I think you said you plan to come back and talk about PF case later.<br /><br /><br />Karen G. Hazzahhttps://www.blogger.com/profile/14864564225463528630noreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-34120286263956467182013-04-11T15:00:26.366-04:002013-04-11T15:00:26.366-04:00>you seem hung up on this idea that Figure 3(b)...>you seem hung up on this idea that Figure 3(b) is an <br />>"annotated figure." <br /><br />Assuming that the question is directed to me ...<br /><br />I'm actually undecided about *what* Fig 3b is. I've never come across anything like this before. I think the Cogdill case raises interesting issues that are worth discussing. I'm asking questions designed to elicit discussion. <br /><br />I do think Fig 3b is *like* an annotated figure in that the Examiner is using made-up Fig 3b to explain the rejection. It's also different, in that the Examiner rearranged things. And maybe that's the simple answer to what is wrong, at the core, with Fig 3b : by rearranging the position of elements in a figure, the Examiner has gone from permissible commentary or explanation about a figure to impermissible making stuff up. <br /><br />Which would mean my analogy is wrongheaded and misplaced. So what. Doesn't make me an idiot for thinking about these issues. Just means I don't have all the answers. I can live with that. Karen G. Hazzahhttps://www.blogger.com/profile/14864564225463528630noreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-6209532274483500182013-04-11T13:39:14.500-04:002013-04-11T13:39:14.500-04:00One more quick thing: you seem hung up on this id...One more quick thing: you seem hung up on this idea that Figure 3(b) is an "annotated figure." I've asked you, and others, several times, how is Figure 3(b) an annotated figure?Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-85032530593823450232013-04-11T13:37:47.912-04:002013-04-11T13:37:47.912-04:00continued...
"Here, the fact-finder determin...continued...<br /><br />"Here, the fact-finder determines whether the equivalence of Fig. 3b and Fig. 3 has been established."<br /><br />No. As I noted above, the fact finder (i.e. the examiner) asserts that the equivalence of Fig. 3(b) and Fig. 3 has been established, but the Board determines/decides whether it is. And the Board got it wrong in this case because the asserted "equivalence" is completely unsupported by anything that is actually evidence. Assertions by examiners are not facts, they're not even evidence of facts.<br /><br />BTW, you seem to be overlooking the problem that the examiner rejected the claim as anticipated by a supposedly "equivalent" circuit of the reference, not the actual circuit of the reference. Completely improper.<br /><br />"You seem to want to short-cut the fact finding..."<br /><br />Actually, no. I want the fact finding done by the examiner to be much more rigorous.<br /><br />"...and keep Fig. 3b out of the record entirely, apparently because 'there's no need' for the Examiner to resort to a made-up drawing."<br /><br />Again, no. I want to keep it out because: 1) it is not evidence; and 2) it is not based on any evidence.<br /><br />"Even if the Examiner could have made his point with words rather than a drawing, I don't see that as a valid reason for keeping the drawing out of the record."<br /><br />Had the examiner been required to explain in words how Figure 3 of Johnson et al. (the drawing actually in the reference) still described the amended claim (to include the "on the same side" feature) in as much detail as was recited, the examiner would have had to rely on actual evidence (e.g. column/line number of Johnson et al., text book, etc.) to do so, rather than making up the supposedly "equivalent" Figure 3(b) and baldly asserting/concluding that it was "equivalent." <br /><br />"The equivalence of Examiner's 3(b) and Johnson Fig. 3 is an assertion made by the Examiner. The fact-finder makes a determination as to whether the assertion is supported by the evidence."<br /><br />With all due respect, this is the type of circular reasoning I see from examiners. The examiner, under your position, could simply say, "I assert that these are equivalent. And as I'm the one who determines whether they are equivalent, I determine/conclude that they are."<br /><br />While that would certainly make the examiner's job easier, I don't think it would work for applicants.<br /><br />"In the end, I'm still not convinced that Fig. 3b is qualitatively different than routine assertions made by Examiners all the time about what a reference teaches to a POSITA."<br /><br />Routine assertions by examiners about what a reference teaches that are not based on/supported by a preponderance of the evidence are meaningless and incapable of sustaining the examiner's burden. <br /><br />That's all for now. I'll try to get to your questions regarding PF case later.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-6733236595417664807.post-57914611500865193942013-04-11T13:37:09.448-04:002013-04-11T13:37:09.448-04:00"Disagree."
So you think the question o..."Disagree."<br /><br />So you think the question of whether something is even evidence that can be considered is less fundamental that what its "technical merit" (probative value?) is IF it is evidence? Good luck selling that to a judge.<br /><br />"Because it ignores the a third category of stuff used by the Examiner in a rejection: explanation."<br /><br />If by "explanation" you mean "reasoning" then I'm kind of with you. But Figure 3(b) is not an "explanation" of what Johnson et al. disclose. As I've noted before, an examiner's factual finding regarding what a reference discloses must be supported by a preponderance of the evidence. In re Caveney, 761 F.2d 671, 674 (Fed. Cir. 1985). So, even under your view, Figure 3(b) is not evidence, it is supposedly the examiner's explanation of what the actual evidence (i.e. the Johnson et al. reference) discloses. You seem now to be agreeing with me that Figure 3(b) is not evidence. I think I'm making progress.<br /><br />The problem with that, as I've also noted several times before, is that the examiner does not provide any "explanation" or "support" or, yes, actual evidence, for the "explanation" that Figure 3(b) is supposed to be. Go back and review the final rejection and the examiner's answer. Where in either of those "explanations" does the examiner point to anything that we all agree is evidence, i.e. the Johnson et al. reference, in support of the "explanation" that is Figure 3(b)? Does the examiner, for example, point to a particular column and line number of Johnson et al. and argue and/or reason that that particular column and line number "supports" or "explains" the examiner's assertion/conclusion that Figure 3(b) is "equivalent" to Figure 3 of Johnson et al.? Does the examiner cite to a well known circuits text book or design manual and argue/reason that? I reviewed the prosecution history and I'm pretty sure the answer to those questions is emphatically no.<br /><br />"*If* Fig. 3b is properly viewed as explanation, analogous to an annotated drawing, then there is nothing objectionable to it being in the record."<br /><br />Of course there is. Figure 3(b) is not itself actual evidence ("explanation" is not evidence, it is argument and/or reasoning, which last time I checked is not evidence) nor is it based on any actual evidence.<br /><br />"But it's the fact-finder that determines whether the fact has been established, right?"<br /><br />The examiner is the fact finder during examination. However, to channel W. a little bit, the examiner is not the fact decider. The examiner is supposed to resolve questions of fact and law. As I've noted before, anticipation is a question of fact. So the examiner is supposed to present evidence that establishes, by a preponderance (i.e. more likely than not) that the claimed invention is not novel. In obviousness, which is a question of law (based on underlying factual inquiries), the examiner is supposed to resolve the four factual inquiries set out in Graham (i.e. scope and content of the prior art, etc.) So for example, the examiner is supposed to present evidence, that establishes by a preponderance, that all of the claimed elements/features/limitations are in the prior art.<br /><br />In disputes as to whether the examiner's evidence establishes, by a preponderance, the facts the examiner is relying on to reject the claim, the Board decides. In disputes between the applicant and the Board, the Fed. Cir. decides.<br /><br /> <br /> <br />Anonymousnoreply@blogger.com