Appeal No. 97-2502
Application 08/358,353
Having carefully considered the entire record which
includes, inter alia, the appellant’s Brief (Paper No. 12), Reply
Brief (Paper No. 14) and supplemental Reply Brief (Paper No. 17),
as well as the examiner’s Answer (Paper No. 13), supplemental
Answer (Paper No. 16) and second supplemental Answer (Paper No.
19), we reverse the rejection with respect to the method claims,
claims 14 through 28, and affirm with respect to the product and
product-by-process claims, claims 30 through 37.
As an initial matter we note the appellant’s statement on p.
5 of the Brief that the claims do not stand or fall together. 37
CFR § 1.192(c)(7) and (8). As we understand it, the appellant
has grouped method claims 15 and 16 separate from method claims
14 and 17 through 28. In addition, the appellant has grouped the
product-by-process claims 29 and 30 together, and the composition
claims 31 through 37 together. Brief, pp. 3 and 9. Accordingly,
we will consider the issues as they apply to claims 14, 15, 16,
30 and 31, which are representative of each of the appellant’s
groups.
is, contrary to the contention on p. 1 of the supplemental
Answer, the appellant is entitled to withdraw the claim from
appeal. Thus, although still pending in the application, claim
29 is not on appeal before this merits panel. Therefore, upon
return of this application to the corps, the examiner should
clarify the record as to the status of this claim.
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