Appeal No. 95-3387
Application No. 08/005,942
Appellants should note that an examiner does not have the
authority to grant such a request. As explained in the Manual
of Patent Examining Procedure, MPEP (6th edition, Rev. 3, July
1997) Section 1206, page 1200-8:
Appellants must traverse every ground of
rejection set forth in the final rejection. Oral
argument at the hearing will not remedy such a
deficiency in the brief. Ignoring or acquiescing
in any rejection, even one based upon formal matters
which could be cured by subsequent amendment, will
invite a dismissal of the appeal as to the claims
affected. If this involves all of the claims, the
proceedings in the case are considered terminated
as of the date of the dismissal. Accordingly, any
application filed thereafter will not be copending
with the application on appeal.
In this application we consider appellants' comments to be an
acquiescence on the merits. We are loathe to dismiss the
appeal given the particular facts of this case, specifically
the examiner's handling of the issue. The examiner failed to
alert appellants to the consequences of an acquiescence in a
rejection and to extend the opportunity to submit a complete
Appeal Brief, and the comments made in the Examiner's Answer
in this regard, which would give the impression that no more
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