Ex parte CUSHING - Page 2




          Appeal No. 96-2476                                                          
          Application 07/890,785                                                      


               At the outset, it is necessary to review the final stages              
          of the prosecution of this application prior to its arrival at              
          the                                                                         


          Board of Patent Appeals and Interferences, for it bears upon                
          the status of some of the claims alleged to be on appeal.                   
               At the time the final rejection was rendered in this                   
          case, claims 14 through 35 were pending.  However, as a result              
          of a requirement for election of species, claims 18 through 21              
          and 25 through 35 had been withdrawn from consideration, and                
          therefore the final rejection made by the examiner applied to               
          claims 14 through 17 and 22 through 24 (Paper No. 21), and                  
          these were the claims recited in the appellant's Notice of                  
          Appeal (Paper No. 27).  However, in the Brief on Appeal the                 
          appellant added to the appeal the propriety of the examiner's               
          refusal to include claims 25 through 28 and 33 through 35                   
          among those claims readable on the elected species (Paper No.               
          31).                                                                        
               The Examiner's Answer (Paper No. 32) dealt with the                    
          standing final rejection of claims 14 through 17 and 22                     
          through 24 under 35 U.S.C.  103.  In addition, the examiner                
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