Appeal No. 97-1398
Application 08/295,225
DECISION ON APPEAL
This is an appeal under 35 U.S.C. § 134 from the examiner's
final rejection of appellants' claims as unpatentable over the
prior art. However, there is some confusion in the record
regarding which claims are on appeal. Appellants' brief at 3,2
under the heading "Status of Claims," identifies the claims on
appeal as claims 2-14, 17, 28, 30-32, 35, and 38-41, the claims
which were rejected in the final Office action (paper No. 15) as
unpatentable over the prior art. However, the Answer (at 1),
under the heading "Status of Claims," states that "upon further
view [sic, review], it has been determined that claims 2, 4-11,
13, 14, 17, 28, 38, 39 and 41 are allowable over the prior art of
record. The rejection of these claims is withdrawn accordingly,
and the comments are drawn to the remaining claims."
Nevertheless, the Answer (at 3-11) repeated the rejections of all
of the pending claims and (at 12-20) added new grounds of
rejection directed to all of the pending claims. Appellants'
reply brief (at 1-2) noted this inconsistency and presumed that
the rejections directed to the allowable claims were an oversight
and could be disregarded. Accordingly, they limited their
2All references herein to the brief are to the replacement
brief filed February 8, 1996.
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