Appeal No. 2002-0998
Application 09/296,139
Rather than attempt to reiterate the examiner's commentary
with regard to the above-noted rejections and the conflicting
viewpoints advanced by the examiner and appellants regarding
those rejections, we make reference to the final rejection (Paper
No. 15, mailed August 22, 2001) and the examiner's answer (Paper
No. 18, mailed April 9, 2002) for the reasoning in support of the
rejections, and to appellants’ brief (Paper No. 17, filed January
29, 2002) and reply brief (Paper No. 19, filed June 3, 2002) for
the arguments thereagainst.
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the final rejection, appellants’ brief (Paper No. 17) and the
totality of the examiner’s answer that the rejections as stated
in the final rejection are those that are before us for
consideration on appeal. We are at a loss to understand why all
of the applicable prior art references and rejections were not
repeated in the examiner’s answer. Normally, rejections of
claims which are not repeated in the examiner’s answer are
considered to have been withdrawn by the examiner. See, for
example, Ex parte Emm, 118 USPQ 180 (BdApp 1957). In the present
case, we note that appellants’ grouping of the claims as set
forth on page 4 of the brief in no way relieves the examiner of
the obligation to expressly state in the examiner’s answer
exactly what references and rejections are applicable to the
appealed claims.
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