In Re Thomas F. Carmichael

887 F.2d 1095 13 U.S.P.Q.2d 1735 Unpublished Disposition NOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. In re Thomas F. CARMICHAEL. No. 89-1248. United States Court of Appeals, Federal Circuit. Sept. 20, 1989. Rehearing Denied Oct. 23, 1989. Before BISSELL, Circuit Judge, COWEN, Senior Circuit Judge, and MICHEL, Circuit Judge. COWEN, Senior Circuit Judge. DECISION [1] This is an appeal by Carmichael from a decision of the Board of Patent Appeals and Interferences (board), in Appeal No. 88-2441 issued November 3, 1988. Prior to the board's decision before us in this appeal, this court reversed a decision of the board and awarded priority to Burson. Burson v. Carmichael, 731 F.2d 849, 221 USPQ 664 (Fed.Cir.1984). Thereafter, in the ex parte prosecution of Carmichael's application, the board affirmed the examiner's rejection of a number of Carmichael's claims on the ground that the subject matter of the counts lost in the interference as a result of this court's decision were prior art against Carmichael's claims. The board also affirmed the examiner's rejection of the claims on the general ground of interference estoppel. Because the rejection of Carmichael's application under the equitable doctrine of interference estoppel was proper, we affirm the board's decision. Accordingly, we do not reach the issue raised by the board's rejection based on 35 U.S.C. Sections 102(g) and 103.