Appeal No. 1997-3481
Application 08/476,543
Examiner resurrected the rejection in the Examiner's Answer
and added additional arguments; it was not stated whether the
omission of the rejection in the Final Rejection was due to
accident, inadvertence, carelessness, or intent. Appellants'
Reply Brief, which addresses the enablement issue and submits
a declaration, is considered proper and has been entered.
The Examiner asserts that the claimed auto-discrimination
feature for reading bar codes of a plurality of bar code types
is not disclosed and, therefore, not enabled (EA2-3).
Appellants argue that the auto-discrimination feature is
disclosed in the computer program listing, which is part of
the specification according to 37 CFR § 1.96(a)(2)(ii) (RBr5).
Page 40 of the specification states that the computer
program listing has been submitted pursuant to 37 CFR
§ 1.96(a)(2)(ii). The program listing was originally filed
with ancestor Application 06/334,811 and the program listing
is clearly part of the specification on which Appellants are
entitled to rely. However, we note that while 37 CFR
§ 1.96(a) deals with material that will be printed in the
patent, the appendix has never been published as part of any
of the patents that have issued from the chain of
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