Ex parte ARVIDSSON - Page 13




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


                which also fasten the anchorage portions in the vehicle body.”                                                                
                There is no disclosure of any such structure for the embodiment                                                               
                of Fig. 1.                                                                                                                    
                         On January 28, 1993, appellant filed an amendment adding a                                                           
                new figure, Fig. 4, which appears to show the apparatus of Fig. 1                                                             
                with the addition of a seal member between the neck 10 and the                                                                
                vehicle, and a screw 18 fastening the neck and seal to the                                                                    
                vehicle body.  The examiner objected to this amendment as new                                                                 
                matter and required cancellation of the added material (final                                                                 
                rejection, page 2).  She further held this requirement to be                                                                  
                petitionable, rather than appealable, noting that the claims have                                                             
                not been rejected as involving new matter  (Paper No. 33, page 2;    6                                                        
                Paper No. 36, page 2).                                                                                                        
                         We agree with the examiner that the question of new matter,                                                          
                per se, is not before us, since no claims have been rejected on                                                               
                that ground.  See MPEP  608.04(c) and Ex parte Wilcox, 39 USPQ                                                               
                501, 502 (Bd. App. 1938).  Appellant, however, refers to Fig. 4                                                               
                in arguing that it shows that the species of Figs. 1 and 2 are                                                                
                not mutually exclusive.  This argument goes to the propriety of                                                               

                         6While amendatory matter may properly be objected to as                                                              
                new matter under 35 U.S.C.  132, any rejection on that ground                                                                
                would be under 35 U.S.C.  112, first paragraph, rather than 35                                                               
                U.S.C.  132.  See In re Rasmussen, 650 F.2d 1212, 211 USPQ 323                                                               
                (CCPA 1981).                                                                                                                  
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