The interference involves Rowe's claims 53-66. T he administrative patent judge, however, issued a show cause order pertaining to all Rowe's claims 53-66. In spite of Rowe's objection, the Board treated claims 53-66 together.
Judicial precedent is as binding on administrative agencies as are statutes.
However, the PTO had good reason to promulgate a new rule in light of the new practice in which patentability of claims can be considered during the motion period of an interference. Earlier case law did not deal with such a situation. Thus, the PTO was writing on a clean slate, not flouting judicial precedent.