Appeal 2007-1325
Application 10/065,722
1 What is not an issue on appeal is whether the Examiner erred in
2 rejecting claims 49-59 as being unpatentable under 35 U.S.C. § 112, second
3 paragraph, for failure to particularly point out and distinctly claim the
4 invention.
5 In the Appeal Brief, Dart says that it is "not appealing this rejection in
6 this proceeding." (Appeal Brief 4 n.2).
7 However, in the Notice of Appeal, Dart says that it appeals from the
8 last decision of the Examiner.
9 Contrary to Dart's assertion that it is not appealing the § 112 rejection,
10 Dart has appealed the rejection, but has abandoned the appeal as to the
11 rejection.
12 Accordingly, the appeal will be dismissed as to claims 49-59 and
13 therefore there is no further need to address or consider the Examiner's
14 § 112, second paragraph, on the merits.
15
16 D. Findings of fact
17 The following findings of fact are believed to be supported by a
18 preponderance of the evidence. To the extent that a finding of fact is a
19 conclusion of law, it may be treated as such. Additional findings as
20 necessary may appear in the discussion portion of the opinion.
21 The invention
22 The invention can be understood by references to Figs. 1, 2 and 6, and
23 independent claims 83-84 and 88-89.
5
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