Appeal No. 96-3628
Application 08/050,029
Claims 1 and 3 through 9 stand rejected under 35 U.S.C. § 103 as unpatentable
over Ballance in view of Husbands. In a new ground of rejection entered in the principal
answer, the examiner also rejects claim 3 under 35 U.S.C. § 112, second paragraph, as
being indefinite because the claim depends from canceled claim 2.
Reference is made to the briefs and answers for the respective positions of
appellants and the examiner.
OPINION
At the outset, we note that, in accordance with appellants’ grouping of the claims
at page 8 of the principal brief, all claims will stand or fall together with regard to the prior
art rejection.
We turn first to the rejection of claim 3 under 35 U.S.C. § 112, second paragraph.
The examiner rejects the claim as being indefinite because it depends from a now-canceled
claim (claim 2). Appellants do not dispute the propriety of the rejection, contending in the
reply brief that the improper dependency will be corrected by amendment after the
decision on appeal, specifically noting that claim 3 will be amended to depend from claim
1. Accordingly, the rejection of claim 3 under 35 U.S.C. § 112, second paragraph, is
summarily sustained and we leave it to appellants and/or the examiner, at a later,
appropriate time, to amend claim 3 to make it dependent on claim 1.
We now turn to the rejection of claims 1 and 3 through 9 under 35 U.S.C. § 103.
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