Appeal No. 1999-1583
Application No. 08/377,390
examiner repeats the rejection of claim 3 under 35 U.S.C. 112,
first and second paragraphs, in the answer, referring to the
final rejection, Paper No. 9 [answer-page 3] and indicates
nowhere in the answer that the rejection has been overcome by
an amendment or that the rejection has been withdrawn.
Appellants file no reply brief even in the face of a
clear indication in the answer that there still exists a
rejection of claim 3 under 35 U.S.C. 112, first and second
paragraphs.
We will not sustain the rejection of claim 3 under 35
U.S.C. 112, first and second paragraphs. We understand that
there may have been no argument in the brief because
appellants assumed that the rejections under 35 U.S.C. 112,
first and second paragraphs, had been overcome by a previously
filed amendment. We do find it strange, however, that
appellants filed no reply brief to contest the rejections
under 35 U.S.C. 112 once it became clear in the answer that
the examiner had not withdrawn these rejections. In any
event, we will not sustain the rejection of claim 3 under 35
U.S.C. 112, first and second paragraphs because the examiner
simply had no basis for making the rejection.
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