MANZO et al. V. OGATA et al. - Page 5




          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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