Appeal No. 99-0612 Page 4
Application No. 08/772,958
The following rejection is before us for review.
Claims 1, 5 through 8 and 11 through 16 stand rejected 2
under 35 U.S.C. § 103 as being unpatentable over Pauli.
The complete text of the examiner's rejections and
response to the argument presented by the appellants appears
in the answer (Paper No. 11, mailed May 18, 1998), while the
complete statement of the appellants' argument can be found in
the brief (Paper No. 10, filed May 5, 1998) and reply brief
(Paper No. 13, filed July 20, 1998).
OPINION
In reaching our decision in this appeal, we have given
careful consideration to the appellants' specification and
claims, to the applied prior art reference, and to the
respective positions articulated by the appellants and the
2Claims 1 through 3, 6, 8, 9, 12 and 14 were rejected under 35 U.S.C. § 102(b) as being
anticipated by Pauli and claims 4, 5, 7, 10, 13, 15, 16 and 17 were rejected under 35 U.S.C. § 103 as
being unpatentable over Pauli in the final rejection (Paper No. 6). Claim 11 was not included in the
statement of the rejections in the final rejection, but was indicated as being rejected in the Office
action summary sheet accompanying the final rejection. In an amendment after final rejection filed
February 10, 1998, claims 2 through 4, 9, 10 and 17 were canceled and independent claims 1, 8 and 14
were amended to include the limitations of claims 2 through 4, 9 and 10 and 17, respectively. In the
advisory action mailed February 23, 1998, the examiner indicated that the amendment would be entered and
indicated that claims 1, 5 through 8 and 11 through 16, the only pending claims, stand rejected. On
page 2 of the brief, in the Status of Claims section, the appellants state that "[c]laims 1, 5-8 and 11-
16 are pending and stand rejected" and this statement is acknowledged as being correct on page 2 of the
answer. Accordingly, based on the record as a whole, we interpret the examiner's statement of the
rejection on page 3 of the answer as including claims 1, 5 through 8 and 11 through 16. The appellants
are apparently not prejudiced by this interpretation since it is clear from the brief that the
appellants also understood claims 1, 5 through 8 and 11 through 16 to be rejected under 35 U.S.C. § 103
as being unpatentable over Pauli (brief, page 6).
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