that a response ordinarily must accompany a petition to revive,
unless, of course, it has been previously filed. 37 CFR
§ 1.137(b)(1). A response had previously been filed (Paper
No. 11 in the file of application 08/193,589). The need for a
further response was overtaken by the event of the entry of the
Examiner's Amendment. Plainly, the previously filed response, in
combination with the Examiner's Amendment, demonstrate that
"responsive pleadings"--to use Manzo's words--had previously been
filed. Hence, there no longer was a need to file a response with
the petition to revive. It has long been jurisprudence in our
country that an individual need not do something which would be
futile or impossible. Since the Primary Examiner had entered an
Examiner's Amendment which overcame all rejections and
objections, there was nothing more for Ogata to do. In short, it
would have been impossible for Ogata to have filed any response
which would have made sense. Furthermore, the fact that the
Office of the Assistant Commissioner accepted the petition to
revive and acted favorably on its merits without a response,
adequately demonstrates that the Office of the Assistant
Commissioner for Patent also felt that no further response was
necessary.
Since Manzo has failed to overcome the order to show cause,
judgment will be entered against him.
C. Judgment
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