Appeal No. 97-2504
Application 08/200,707
rejection of claim 3 as set forth in paragraph 1(c) of the final
rejection. Appellants have made no comments with respect to this
rejection.
In view of this prosecution history, we must first decide
what to do about the Section 112 rejection of claim 3 as set
forth in paragraph 1(c) of the final rejection. The examiner’s
answer has repeated this rejection even though the second
advisory action [Paper #16] indicated that the rejection under
the second paragraph of 35 U.S.C. § 112 would be overcome by the
amendment. The brief ignores this rejection and notes that the
rejections of paragraphs 1(a) and 1(b) had been overcome by their
after final amendment [brief, page 2]. Thus, we have a situation
where appellants may have been misled by the second advisory
action indicating that the Section 112 rejection had been
overcome, yet appellants appear not to have read the examiner’s
answer which repeated the rejection and appellants admit that
their amendment only overcame the rejection as set forth in
paragraphs 1(a) and 1(b) of the final rejection.
Although we do not condone appellants’ failure to
carefully read the examiner’s answer, we do recognize that the
second advisory action could have misled appellants into thinking
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