unpatentability grounds. Subsection (3) was added to 37 C.F.R. § 1.313(b) in 1982. However, even before the addition of the “unpatentability” language, the PTO had the discretion to withdraw applications from issue on the basis of “mistake on the part of the Office” or subsection (1). The mistake ground was consistently held to envelop subsequently discovered reasons undermining an application’s patentability. See, e.g., Hull v. Commissioner of Patents, 9 D.C. (2 MacArth.) 90 (1875)(denying writ of mandamus requesting issue of withdrawn patent). Indeed, defendant argues that the Director has not only the discretion but the duty to withdraw a patent from issue if there is a question about its patentability. See In re Alappat, 33 F.3d 1526, 1535 (Fed.Cir.1994)(en banc)(plurality opinion) (<HOLDING>). As for the standard of review of the PTO’s
recognizing that any witness has the right to refuse to be interviewed if he so desires and is not under or subject to legal process holding that a suspect must be warned prior to any questioning that he has the right to remain silent that anything he says can be used against him in a court of law that he has the right to the presence of an attorney and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires holding that defendant has the right to refuse a plea of insanity holding that the application of an element of a state law tort is preempted if in holding a defendant hable for the conduct  there would be conflict with federal patent law holding that the commissioner has an obligation to refuse to grant a patent if he believes that doing so would be contrary to law