Appeal No. 96-0107
Application 08/026,797
regards as the invention. According to the examiner (Answer,
p.4):
In claims 1, 5, and 12, although the
openings in the layer of dielectric (or
electrically insulating) material align with
the holes in the microchannel plate as
claimed, the Examiner believes that the
Appellant intended that the openings in the
layer of dielectric material cover (not "do
not cover") the holes in the microchannel
plate. If the openings in the layer of
dielectric material do not cover the holes in
the microchannel plate as claimed, then what
do the openings in the layer of dielectric
material cover?
At the outset, we note that there is some dispute as to
whether the rejection of claims 1-11 under 35 U.S.C. § 112,
second paragraph, is properly an issue in this appeal. Appellant
argues that (Reply, p.3):
. . . Claims 1-11 have not been rejected
under 35 USC 112, second paragraph, prior to
the Examiner's Answer. If Claims 1-11 are
now being rejected on this basis, then this
constitutes a new grounds of rejection raised
in the Examiner's Answer, and an amendment
directed to the new ground of rejection is
entitled to entry (MPEP 1208.03(2)).
There is no dispute that the examiner failed to include
claims 1-11 in the introductory statement setting forth the
rejection under 35 U.S.C. § 112, second paragraph, in the final
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