Ex parte STURM et al. - Page 8




                 Appeal No. 97-3187                                                                                                                     
                 Application No. 07/999,422                                                                                                             


                 as the appellants' failure to timely file a divisional                                                                                 
                 application was not considered to be error causing the patent                                                                          
                 granted on the elected claims to be partially inoperative by                                                                           
                 reason of claiming less than they had a right to claim.2                                                                               


                          Rather than reiterate the conflicting viewpoints advanced                                                                     
                 by the examiner and the appellants regarding the 35 U.S.C.                                                                            
                 251 rejection, we make reference to the final rejection and                                                                            
                 the examiner's answer (Paper No. 26, mailed February 28, 1997)                                                                         
                 for the examiner's complete reasoning in support of the                                                                                
                 rejection, and to the appellants' brief for the appellants'                                                                            
                 arguments thereagainst.                                                                                                                


                                                                     OPINION                                                                            
                          In reaching our decision in this appeal, we have given                                                                        
                 careful consideration to the respective positions articulated                                                                          
                 by the appellants and the examiner.  As a consequence of our                                                                           
                 review, we will not sustain the examiner's rejection under 35                                                                          
                 U.S.C.                                                                                                                                 

                          2As noted above, the appellants have withdrawn claims 3-                                                                      
                 4.                                                                                                                                     
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