Appeal No. 95-2600
Application 07/990,458
arguments regarding claim 7 and 9 in the Reply Brief are untimely
and will not be considered.
Claim 10
Appellant did not argue claim 10 in the main brief. The
examiner dropped the Gale reference from the statement of the
rejection of claim 10 in the Examiner's Answer (page 2).
Technically, this does not create a new ground of rejection. See
In re Bush, 296 F.2d 491, 496, 131 USPQ 263, 266-67 (CCPA 1961)
("the answer specified a rejection on Whitney in view of Harth
and if the board found it unnecessary to rely on Harth in
sustaining that rejection, as it appears to have done, that does
not amount to rejection on a new ground"). Appellant does not
explain how he has been denied an opportunity to react to the
rejection when he never sought to argue claim 10 in the main
brief. See In re Kronig, 539 F.2d 1300, 1302, 190 USPQ 425, 426
(CCPA 1976) (the "ultimate criterion" of whether a rejection is
new is "whether appellants have had a fair opportunity to react
to the thrust of the rejection"). Accordingly, we treat claim 10
as falling with claim 9 because it was not argued in the main
brief. The rejection of claim 10 is sustained.
Claim 11
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