1. “When a three-member panel of the Board has rendered its decision, does the Commissioner have the authority to constitute a new panel for purposes of reconsideration?” 2. “If the Commissioner lacks such authority, is the decision of such a new panel a decision of the Board for purposes of 28 U.S.C. § 1295(a)(4)(A)? If not, does this court have jurisdiction to reach the merits of the appealed decision?” 3. “What is the relationship, if any, between the ‘reconsideration’ action taken in this case and ‘rehearings’ by the Board provided for in 35 U.S.C. § 7(b)?”
“[W]e hold that the answer to the first question is yes. Consequently, we need not address the second question. As to the third question, we hold, for the reasons explained later, that the ‘reconsideration’ by the Board was a ‘rehearing’ as provided for in 35 U.S.C. § 7(b) (1988).”
