In Re NCH CORPORATION , No. 22-1166 (Fed. Cir. 2022)
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Case: 22-1166 Document: 13 Page: 1 Filed: 05/26/2022 NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ In re: NCH CORPORATION, Appellant ______________________ 2022-1166 ______________________ Appeal from the United States Patent and Trademark Office, Patent Trial and Appeal Board in No. 14/681,777. ______________________ ON MOTION ______________________ Before LOURIE, TARANTO, and HUGHES, Circuit Judges. PER CURIAM. ORDER The Director of the United States Patent and Trademark Office moves to waive the requirements of Federal Circuit Rule 27(f) and to remand for further proceedings. NCH Corporation opposes remand. NCH appeals from the Patent Trial and Appeal Board’s affirmance of the examiner’s rejections of claims in NCH’s patent application for lack of written description under 35 U.S.C. § 112(a) and/or as obvious under 35 U.S.C. § 103(a). In its opening appeal brief, NCH argues that the Board failed to address arguments and declaration evidence that NCH provided in its opening brief to the Board Case: 22-1166 Document: 13 2 Page: 2 Filed: 05/26/2022 IN RE: NCH CORPORATION to rebut those rejections, which the Board incorrectly deemed as presented for the first time in NCH’s reply brief. The Director now acknowledges that the Board mistakenly believed the arguments to be newly presented in NCH’s reply brief, and “[t]hus, the Board’s analysis is incomplete at this time.” Mot. at 2. The Director therefore moves to remand for the Board to address NCH’s arguments and declaration evidence in the first instance. It is within this court’s discretion to remand to allow the agency to reconsider its previous position. See SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). We agree that remand is proper and could preserve party and judicial resources, and therefore grant the motion. Accordingly, IT IS ORDERED THAT: (1) The motion is granted. The appeal is remanded to the Board to address NCH’s arguments and supporting evidence and to issue a revised decision. On remand, NCH should be given an opportunity to raise arguments and evidence it believes the Board failed to consider properly. (2) Each side shall bear its own costs. FOR THE COURT May 26, 2022 Date /s/ Peter R. Marksteiner Peter R. Marksteiner Clerk of Court ISSUED AS A MANDATE: May 26, 2022
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