In a rare reversal of a patent appeals board ruling, the U.S. Court of Appeals for the Federal Circuit chastised the board for rejecting a patent on a different ground than the one used by the patent examiner.
The Sept. 19 unanimous panel ruling in In Re Leithem vacated a board of Patent Appeals and Interferences affirmance of a patent examiner who rejected Phyllis Leithem’s diaper patent for obviousness. It remanded the case to the board “to allow appellants a full opportunity to respond to the new rejection in the first instance.”
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