Appeal No. 2004-0252
Application No. 09/439,920
Applied Digital Data Sys., Inc., 730 F.2d 1440, 1444, 221 USPQ
385, 388 (Fed. Cir.), cert. dismissed, 468 U.S. 1228 (1984),
citing Kalman v. Kimberly-Clark Corp., 713 F.2d 760, 772,
218 USPQ 781, 789 (Fed. Cir. 1983), cert. denied, 465 U.S. 1026
(1984).
With regard to claim 24, appellant argues that since the
examiner omitted claim 24 from a rejection of claims under
35 U.S.C. § 102(e), in the final rejection, there is no such
rejection of claim 24. We disagree. The examiner may have
inadvertently omitted this claim in the final rejection, but it
is clear from the answer that claim 24 does, indeed, stand
rejected under 35 U.S.C. § 102(e) and appellant certainly had an
opportunity to respond to this rejection in the reply brief if,
in fact, appellant had no inkling that this claim stood rejected
on that ground.
Since it is clear that appellant knew that claim 24 stood
rejected under 35 U.S.C. § 102(e) and, indeed, responded to that
rejection in the principal brief, we find that there is an
outstanding rejection of claim 24 under 35 U.S.C. § 102(e) and we
will treat the rejection of the claim on its merits.
It is the examiner’s position that Westerman teaches
receiving interlaced video data and converting it to progressive
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