Appeal No. 96-2379 Application 07/837,240 which includes both location and intensity information of the images to be displayed. In his answer, the examiner specifically points out and identifies, for the first time, where in Comins is disclosed such input data including both location and intensity information (answer at 7-8). In the reply brief at 3 and 12-13, the appellant argues that prior to the examiner's answer, the examiner's position was that Comins did not disclose input data which includes both location and intensity information, and therefore it was unfair for the examiner to maintain an opposite position for the first time in the examiner's answer. The appellant asserts that at this late date it was too late to amend the claims and thus the examiner's taking a flip-flop is prejudicial to the appellant. It does appear to us that the examiner has flip-flopped on his position with regard to the limitation at issue. However, that fact does not help the appellant in this appeal. If the appellant felt prejudiced by the examiner's action, the appropriate recourse would have been to petition the Commissioner for a re-opening of prosecution so that the new position of the examiner can be addressed or the claims amended. The appellant did not do that. Alternatively, the appellant can submit substantive arguments in the reply brief to rebut the new points 9Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 NextLast modified: November 3, 2007