Appeal No. 94-3359
Application 07/941,566
appropriate. See MPEP §1208.02. It is certainly not appropriate
to include a claim in the examiner's statement of the rejection,
as in the heading on page 7 of the examiner's answer, and then
make a statement completely at odds with the statement of the
rejection as on page 7 wherein the examiner concludes "claim 8
containing formula VII being non-elected has not been considered
and searched." This statement is at odds with the record, the
prosecution of the claims and the statement of the rejections
before us.
From all the above, and from the examiner's express
statement at page 7 of his answer, we conclude only that the
examiner has withdrawn claim 5 from the rejection under 35 USC
102(b) or, alternatively, under 35 USC 103, from the disclosure
of Scullard alone or Scullard considered with IBM, Hofman, Henzel
and Schuler. Accordingly, the rejection of claim 5 on the above-
noted grounds forms no issue in this appeal.
THE INVENTION
Appellants' claimed invention is broadly directed to a
black and white photographic element comprising a silver halide
emulsion layer and which element has in said emulsion layer or in
a layer adjacent thereto a substantially non-diffusing polymeric
developer compound having a particular formula. The non-
diffusing polymeric developer compound is able to remain within
5
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