Ex parte ARVIDSSON - Page 10




                Appeal No. 95-3114                                                                                                            
                Application 08/051,800                                                                                                        


                it would have been obvious to so dispose the engagement member in                                                             
                view of Morsch or Rauthmann.                                                                                                  
                Rejection 4                                                                                                                   
                         In the first Office action (Paper No. 5 of application                                                               
                07/634,131), the examiner required an election of species, in                                                                 
                response to which appellant elected the species of Fig. 1 (Paper                                                              
                No. 6, filed Nov. 1, 1991).  The examiner indicated that the                                                                  
                election had been made with traverse (Paper No. 10, page 2).                                                                  
                Thereafter, in the final rejection (Paper No. 26), the examiner                                                               
                stated that claims 3, 5, 8, 9, 13, 14, 18, 19, 23 and 24 were                                                                 
                withdrawn from consideration under 37 CFR  1.142(b) as being                                                                 
                drawn to a nonelected species.  In response to arguments in                                                                   
                appellant's brief, the examiner held on page 2 of the answer that                                                             
                the question of withdrawal of the claims was a petitionable, not                                                              
                appealable, matter.  However, after the appellant, on page 2 of                                                               
                the reply brief, called the examiner's attention to MPEP  821,4                                                              

                         4MPEP  821 provides                                                                                                 
                         821  Treatment of Claims Held to be Drawn to Nonelected                                                              
                         Inventions                                                                                                           
                                                            *  *  *  *  *                                                                     
                                 The propriety of a requirement to restrict, if                                                               
                         traversed, is reviewable by petition under 37 CFR                                                                    
                         1.144, In re Hengehold, [440 F.2d 1395] 169 USPQ 473                                                                 
                         (CCPA 1971).                                                                                                         
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