The US Court of Appeals for the Federal Circuit vacated a Patent
Trial and Appeal Board (PTAB) rejection of claims as obvious and
remanded the case, finding that the PTAB failed to review arguments
in a reply brief. In re: Durance, Case No. 17-1486 (Fed.
Cir., June 1, 2018) (Reyna, J).
Durance filed a patent application directed to microwave
vacuum-drying of organic materials, such as fruits. During
examination of the application, the examiner rejected all of
Durance's claims, including the independent apparatus and
method claims, based on a combination of cited references. In the
final office action, the examiner relied on Figures 6 and 7 of a
cited reference and inherency as teaching the claimed invention. In
a subsequent interview, the examiner changed course and relied on
Figure 8 of the cited reference as teaching the claimed invention.
Later, in an answer to Durance's appeal, the examiner again
changed course and relied on all of the identified figures in
