In Re Thomas F. Carmichael, 887 F.2d 1095 (Fed. Cir. 1989)

DECISION

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.