Appeal No. 1995-4105 Page 2
Application No. 08/108,908
wherein he brings to our attention an error regarding the
disposition of claim 37.
Claim 37 depends from independent claim 1, and was grouped
by the examiner with claim 1 in a rejection under 35 U.S.C. §
103 as being unpatentable over Linovitz in view of Niederer,
along with independent claim 17 and others. In our decision,
we sustained this rejection of claim 1, but did not sustain the
rejection of claim 17. Inadvertently, however, in our
recapitulations of rejections sustained and not sustained, we
treated claim 37 as though it depended from claim 17 instead of
claim 1, and therefore in our summaries on pages 15 and 21,
claim 37 was among the claims listed whose rejection had not
been sustained. This was in error.
The fact is that the appellant chose not to argue before
this panel of the Board of Patent Appeals and Interferences the
patentability of claim 37 apart from that of claim 1, and it
therefore should have been grouped with claim 1, from which it
depends. Since we sustained the Section 103 rejection of claim
1, it follows that the rejection of claim 37 on the same basis
also should have been indicated as being sustained, as was our
intention. We hereby modify our decision to that effect, that
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