Appeal No. 1997-4125 Page 6
Application No. 08/261,523
A rejection not referred to in an examiner’s answer is
assumed to have been withdrawn. Ex parte Emm, 118 USPQ 180,
181 (Bd. Pat. App. & Int. 1958) (citing Ex parte Charch, 102
USPQ 363, 364 (Bd. Pat. App. & Int. 1954) and Ex parte Hill,
93 USPQ 45, 46 (Bd. Pat. App. & Int. 1952)). In the
subsequent and final examiner’s answer, viz., the Second
Supplemental Examiner’s Answer (Paper No. 19), the examiner
neither repeats nor references the rejection under 35 U.S.C. §
112, ¶ 1. He only discusses the obviousness rejection
therein. Therefore, we conclude that the rejection under 35
U.S.C. § 112, ¶ 1 has been withdrawn.
Considering the rejection on its merits arguendo,
however, we note that the term “simultaneously” has been
deleted from the claims. (Paper No. 18 at 2-4.) Because the
rejection was based on the addition of the term to the claims,
its deletion renders the rejection moot. Next, we address the
obviousness of the claims.
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