Appeal No. 96-2379
Application 07/837,240
which includes both location and intensity information of the
images to be displayed. In his answer, the examiner specifically
points out and identifies, for the first time, where in Comins is
disclosed such input data including both location and intensity
information (answer at 7-8).
In the reply brief at 3 and 12-13, the appellant argues that
prior to the examiner's answer, the examiner's position was that
Comins did not disclose input data which includes both location
and intensity information, and therefore it was unfair for the
examiner to maintain an opposite position for the first time in
the examiner's answer. The appellant asserts that at this late
date it was too late to amend the claims and thus the examiner's
taking a flip-flop is prejudicial to the appellant.
It does appear to us that the examiner has flip-flopped on
his position with regard to the limitation at issue. However,
that fact does not help the appellant in this appeal. If the
appellant felt prejudiced by the examiner's action, the
appropriate recourse would have been to petition the Commissioner
for a re-opening of prosecution so that the new position of the
examiner can be addressed or the claims amended. The appellant
did not do that. Alternatively, the appellant can submit
substantive arguments in the reply brief to rebut the new points
9
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007