Ex parte CUSHING - Page 3




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


          now added a new rejection under 35 U.S.C.  112, second                     
          paragraph, which was directed to claims 25 through 28 and 33                
          through 35, apparently responding to the suggestion set forth               
          in Section 821 of the Manual of Patent Examining Procedure.                 
          There then followed from the appellant an amendment under Rule              
          193(b) (Paper No. 33), a reply brief (Paper No. 34), and a                  
          reply brief accompanied by a supplemental amendment (Papers                 
          No. 35), all of which were refused entry by the examiner                    
          (Paper No. 36).  A petition for entry of the latter two                     
          documents (Paper No. 37) was denied (Paper No. 38).                         
               The result of the above sequence of events is that the                 
          record now before this panel of the Board is devoid of                      
          arguments by the appellant in rebuttal to the rejection of                  
          claims 25 through 28 and 33 through 35 under 35 U.S.C.  112,               
          second paragraph, which the examiner made for the first time                
          in the Examiner's Answer.  Since the Examiner's Answer sets                 
          forth the requirement that a response to the new ground of                  
          rejection be filed within two months (page 9), and because                  
          such a response has not been made of record, the appeal as to               
          claims 25 through 28 and 33 through 35 is dismissed.                        


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