Appeal No. 95-3114
Application 08/051,800
it would have been obvious to so dispose the engagement member in
view of Morsch or Rauthmann.
Rejection 4
In the first Office action (Paper No. 5 of application
07/634,131), the examiner required an election of species, in
response to which appellant elected the species of Fig. 1 (Paper
No. 6, filed Nov. 1, 1991). The examiner indicated that the
election had been made with traverse (Paper No. 10, page 2).
Thereafter, in the final rejection (Paper No. 26), the examiner
stated that claims 3, 5, 8, 9, 13, 14, 18, 19, 23 and 24 were
withdrawn from consideration under 37 CFR § 1.142(b) as being
drawn to a nonelected species. In response to arguments in
appellant's brief, the examiner held on page 2 of the answer that
the question of withdrawal of the claims was a petitionable, not
appealable, matter. However, after the appellant, on page 2 of
the reply brief, called the examiner's attention to MPEP § 821,4
4MPEP § 821 provides
821 Treatment of Claims Held to be Drawn to Nonelected
Inventions
* * * * *
The propriety of a requirement to restrict, if
traversed, is reviewable by petition under 37 CFR
1.144, In re Hengehold, [440 F.2d 1395] 169 USPQ 473
(CCPA 1971).
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