Ex parte HOLLAND - Page 2




                Appeal No. 96-4043                                                                                                            
                Application 08/235,538                                                                                                        


                                                  DECISION ON APPEAL                                                                          
                         This appeal is from the decision of the examiner to reject                                                           
                claims 12 through 14.   Claims 15 through 23, the only other2                                                                                          
                claims pending in the application, stand allowed.                                                                             
                         The invention relates to “containers for light-sensitive                                                             
                strip or sheet materials” (specification, page 1).  Claim 12 is                                                               
                illustrative of the subject matter on appeal and reads as                                                                     
                follows:                                                                                                                      
                         12.  A container for enclosing a strip or sheet of light                                                             
                sensitive material of the type including an elongated opening                                                                 
                from said container for withdrawing said light-sensitive                                                                      
                material, said opening having a pair of opposed inner faces; and                                                              
                a strip of light-locking material attached to each of said inner                                                              
                faces, characterized by: said light-locking material being a                                                                  
                woven, napped and sheared fabric having staple yarn weft floats                                                               
                with said staple yarn fibers raised therefrom to form a pile to                                                               
                prevent light from entering said container and exposing said                                                                  
                light-sensitive material.                                                                                                     

                         2The record in this application indicates (1) that none of                                                           
                claims 12 through 14 has been twice rejected and (2) that the                                                                 
                decision of the examiner appealed from (Paper No. 8) was not                                                                  
                expressly designated as a final rejection or action.  These                                                                   
                circumstances raise the issue of whether the instant appeal is                                                                
                premature (see 35 U.S.C.  134 and 37 CFR  1.191(a)).  It is                                                                 
                apparent from the Notice of Appeal (Paper No. 9) and main brief                                                               
                (Paper No. 10) that the appellant considers the decision appealed                                                             
                from to be a final rejection or action.  It would also appear                                                                 
                from the statement in the answer (Paper No. 11) that “[n]o                                                                    
                amendment after final has been filed” (page 1) that the examiner                                                              
                also considers the decision appealed from to be a final rejection                                                             
                or action.  In this light, we regard the decision appealed from                                                               
                to be a final rejection or action, with the examiner’s failure to                                                             
                expressly designate it as such being the result of an inadvertent                                                             
                oversight.                                                                                                                    
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