Appeal No. 97-4004
Application 08/459,417
answer.2
OPINION
We have carefully reviewed the appellants’ invention as
described in the specification, the appealed claims, the prior
art applied by the examiner and the respective positions advanced
by the appellants in the brief and reply brief, and by the
examiner in the answer. As a consequence of this review, we will
sustain the rejection of claims 1, 2, 5, 6, 15, 16, 18 and 20.
We will not, however, sustain the rejection of claims 3, 4, 7-11,
17, 19 and 21-26.
Considering first the rejection of claims 1, 2, 5, 6, 15,
16, 18 and 20, the appellants note various alleged deficiencies
of the references individually and urge that the examiner has
2 On January 12, 1998, the appellants also filed a paper styled
“SUPPLEMENTAL REPLY BRIEF TO EXAMINER’S ANSWER” (Paper No. 19). This paper,
however, contains no arguments pertaining to the rejection before us for
consideration. Instead, it is directed to the propriety of the examiner’s
refusal to consider the reference to Perrier which was cited in the
Information Disclosure Statement filed on April 12, 1996 (Paper No. 7). Even
if we were to agree with the appellants that they nominally complied with the
provisions of 37 CFR § 1.97 in filing this Information Disclosure Statement,
we must point out that under 35 U.S.C. § 134 and 37 CFR 1.191, appeals to the
Board of Patent Appeals and Interferences are taken from the decision of the
primary examiner to reject claims. We exercise no general supervisory power
over the examining corps and decisions of primary examiners to deny entry of
papers is not subject to our review. See Manual of Patent Examining Procedure
(MPEP) §§ 1002.02(c) and 1201 (6th ed., Rev. 3, July 1997); cf In re Mindick,
371 F.2d 892, 894, 152 USPQ 566, 568 (CCPA 1967) and In re Deters, 515 F.2d
1152, 1156, 185 USPQ 644, 648 (CCPA 1975). Thus, the relief sought by
appellants would have properly been presented by a petition to the Commisioner
under 37 CFR § 1.181.
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