In Re Stepan Co., No. 10-1261 (Fed. Cir. 2011)
Annotate this CaseThe company's patent covers polyol-based resin blends and methods of using them to create closed-cell polyurethane and polyisocyanurate-based foams, used for thermal insulation boards for the walls of homes and buildings. On reexamination, the examiner ruled that all the claims were invalid as anticipated under 35 U.S.C. 102(b) or, in the alternative, obvious under 35 U.S.C. 103(a). The Board affirmed, relying upon the identical prior art references the examiner had cited. The Federal Circuit vacated, holding that the Board relied on new findings of fact to support rejection and failed to identify this rejection as a new ground, so that the company's notice rights were violated (5 U.S.C. 554(b)(3); 35 U.S.C. 6(b). Had the Board labeled its rejection as a new ground of rejection, the company could have reopened its prosecution to address the newly-alleged deficiencies in its Declaration with the examiner.
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