Appeal No. 94-3359
Application 07/941,566
1993). Accordingly, claims 13 through 17 form no issue in this
appeal.
At the eleventh hour in this appeal, namely in his
answer at pages 6, 7 and 11, the examiner for the first time in
the prosecution of this application, informs appellants and this
Board that certain rejections, both formal and substantive, as to
certain claims (claims 5 and 8) are now being withdrawn from
consideration. In part, the basis for the examiner's withdrawal
is said to be the requirement for restriction/election of species
as set forth in the office action mailed on September 7, 1993.
However, careful review of this record makes it plain
that, notwithstanding the so-called restriction requirement set
forth in the office action mailed September 7, 1993 (the final
rejection - Paper Number 10), the examiner has, consistently
throughout the prosecution, rejected each of claims 1 through 12
on both formal and substantive grounds. Indeed, in the final
rejection the examiner rejected claims 1 through 12 under 35 USC
101; 35 USC 112, first paragraph; 35 USC 102; and, 35 USC 103.
It is from said final rejection which applicants noted their
appeal and it is the very rejections set forth in the final
rejection to which appellants have addressed their arguments in
favor of patentability. Moreover, the examiner has expressly
agreed with appellants' statement of the status of the claims on
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