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Topic: BPAI Appeal - new arguments (Read 11721 times) |
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wallflower
Junior Member
Posts: 96
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Re: BPAI Appeal - new arguments
« Reply #25 on: Aug 18th, 2006, 1:43pm » |
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on Aug 18th, 2006, 12:24pm, dab2d wrote:Why shouldn't it be the same at the examiner's level. If one does their job right, at least the examiner gets to consider the argument first. The filing of an appeal is very taxing on the examiner (aswell as the applicatnt) as is reopening prosecution (when not an allowance).
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I think final office action practice can be taxing. I feel like many times my response after final gets only a glance, which is frustrating. But when I present those same arguments in an appeal brief, I had numerous instances where the case was allowed or reopened for prosecution.
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Isaac
Senior Member
Posts: 3472
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Re: BPAI Appeal - new arguments
« Reply #26 on: Aug 18th, 2006, 1:54pm » |
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on Aug 18th, 2006, 12:24pm, dab2d wrote:| it is not a matter of right if you want the case to go to the board. It can only go to the board if the applicant with the applicant's consent. without that consent, he CANNOT go to the board. he HAS to reopen prosectuion. |
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Isn't going to the board the applicant's choice anyways. After all, the Applicant can elect to file an RCE rather than go to the board (under current rules) even after filing a NOA. Why is it a problem that the Examiner cannot force the case to go to the board. Is it really just the possible loss of the RCE count that seems unfair? Is that something that the applicant ought to worry about after having paid an appeal fee?
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Isaac
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dab2d
Junior Member
Posts: 73
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Re: BPAI Appeal - new arguments
« Reply #27 on: Aug 18th, 2006, 2:21pm » |
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on Aug 18th, 2006, 1:43pm, wallflower wrote:
I think final office action practice can be taxing. I feel like many times my response after final gets only a glance, which is frustrating. But when I present those same arguments in an appeal brief, I had numerous instances where the case was allowed or reopened for prosecution. |
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File an RCE and you might get the same results without paying for the appeal.
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| « Last Edit: Aug 18th, 2006, 2:22pm by dab2d » |
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dab2d
Junior Member
Posts: 73
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Re: BPAI Appeal - new arguments
« Reply #28 on: Aug 18th, 2006, 2:33pm » |
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on Aug 18th, 2006, 1:54pm, Isaac wrote:
Isn't going to the board the applicant's choice anyways. After all, the Applicant can elect to file an RCE rather than go to the board (under current rules) even after filing a NOA. Why is it a problem that the Examiner cannot force the case to go to the board. Is it really just the possible loss of the RCE count that seems unfair? Is that something that the applicant ought to worry about after having paid an appeal fee?
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It is the applicants choice, they pay the fee, and the office makes the rules. However, I still think everyone is best served with an interview and an RCE.
I thought we where just ironing out the details of what the examiner is allowed to do. While he can make new arguments, only the applicant can do so as a matter of right. That in my opinion allows the applicant to be sloppy, while holding the examiner to a different standard of work.
What is unfair is an applicant running to the board with a new argument that could have been made before that point (not talking about a situation where it is the first time the argument could have been made). It waste everyone's time and it could have been avoided if the applicant had done their job in the first place.
I am just saying that if the Attny. is allowed to screw up during the prosecution, but clean up his mess in an appeal. The Examiner should be able to do the same without the permission of the applicant.
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Isaac
Senior Member
Posts: 3472
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Re: BPAI Appeal - new arguments
« Reply #29 on: Aug 18th, 2006, 2:34pm » |
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on Aug 18th, 2006, 2:21pm, dab2d wrote:
File an RCE and you might get the same results without paying for the appeal. |
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If you file an RCE with the same arguments and no amendment the result would likely be a second final. So how does the applicant get the same result of having his old arguments reconsidered by filing an RCE rather than an appeal.
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Isaac
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