Appeal No. 94-3359
Application 07/941,566
appeal as set forth on page 2 of appellants' brief (see page 1 of
the examiner's answer).
Most significantly, however, there is no adequate
written explanation in the record of the nature of the
requirement for election of species other than the phrase "Mr.
Mark A. Litman orally elects a polymer represented by formula V
with Z being -OH on January 26, 1993 being acknowledged." See
Paper Number 5, page 2. Indeed, at page 2 of Paper Number 5,2
there is set forth a requirement for restriction between three
groups of claims and a requirement for applicants to elect "the
invention to be examined" followed by the statement that:
Other issues have not and will not be
considered before the above restriction
is properly made and resolved.
In paper number 7, applicants elected the invention of Group I
(claims 1 through 12) without traverse. Thereafter, except for
the examiner's repeated reference to an election made on January
26, 1993 (page 5 of Paper Number 8; page 3 of Paper Number 10),
there is no further explanation in the record of the nature of
the election of species.
Additionally, the proper procedure to follow when an
election of species is required and applicants' elected species
The polymer represented by formula V is set forth in2
dependent claim 5.
3
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