Appeal No. 1999-0236
Application 08/624,173
infra. Since it is easier to discuss the structure of two
laser diodes, we choose claim 1 as representative. Claims 6,
15, and 18 contain similar limitations. This does not affect
the Examiner's rationale.
Timeliness of examiner's answer is not reviewable
Appellant argues (RBr1) that the examiner's answer was
not timely filed within two months of the brief pursuant to
Manual of Patent Examining Procedure (MPEP) § 1208 and should
not be given consideration. Appellant argues that the
Examiner's delay serves to prejudice Appellant by
unnecessarily prolonging prosecution.
The Board's jurisdiction is limited to those matters
involving the rejection of claims. See In re Hengehold,
440 F.2d 1395, 1404, 169 USPQ 473, 480 (CCPA 1971).
Accordingly, we do not decide whether to strike the examiner's
answer as untimely. Nevertheless, we note that the two-month
period in MPEP § 1208 is procedural in nature and is not a
rule. Moreover, it is unlikely that an examiner's answer
would ever be stricken as untimely because otherwise there
would be no response to the brief. The timeliness of an
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