Ex Parte Reinert - Page 6

                Appeal 2007-2399                                                                                 
                Application 10/896,417                                                                           
                our opinion, a statement submitted during prosecution is not the same or                         
                equivalent to the act of amending the application, itself.  It is not a substitute               
                for the amending the application with a specific reference as required under                     
                35 U.S.C. § 120.                                                                                 
                       Appellant had the opportunity to amend the Specification with the                         
                priority claim after the Examiner, in a non-final rejection (having a mailing                    
                date of Oct. 18, 2005), set forth a new ground of rejection over Reinert ‘362                    
                in view of Reinert ‘201.  37 C.F.R. § 1.78 sets forth the rules for claiming                     
                benefit of an earlier filed application, when the claim is not submitted on the                  
                filing date of the later-filed application.  However, Appellant did not amend                    
                the Specification at this time.                                                                  
                       Finally, Appellant argues that the claims at issue were previously                        
                allowed by another Examiner, and relying on MPEP § 706.04, “full faith and                       
                credit [is] to be accorded [the previous Examiner’s] determination of                            
                allowability of claims 21-26 (Br. 20).                                                           
                       This argument has no merit.  While great care should be given in                          
                rejecting claims previously indicated as allowable, “[f]ull faith and credit                     
                should be given to the search and action of a previous examiner unless there                     
                is a clear error in the previous action or knowledge of other prior art.”                        
                M.P.E.P. § 706.04 (Edition 8, August 2001; revised August 2006).  In this                        
                case, the present Examiner apparently determined that an error had been                          
                made in not rejecting the claims over Reinert ‘362 in view of Reinert ‘201.                      
                We agree with the Examiner’s determination.                                                      





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