Ex parte SIMMONS - Page 1

                        THIS OPINION WAS NOT WRITTEN FOR PUBLICATION                                    
               The opinion in support of the decision being entered today (1) was not                   
               written for publication in a law journal and (2) is not binding precedent                
               of the Board.                                                                            
                                                                                Paper No. 25            
                          UNITED STATES PATENT AND TRADEMARK OFFICE                                     

                               BEFORE THE BOARD OF PATENT APPEALS                                       
                                         AND INTERFERENCES                                              

                                    Ex parte JAMES A. SIMMONS                                           

                                       Appeal No. 1998-2032                                             
                                   Application No. 08/410,048                                           

                                               ON BRIEF                                                 

               Before McCANDLISH, Senior Administrative Patent Judge, and                               
               COHEN and GONZALES, Administrative Patent Judges.                                        

               McCANDLISH, Senior Administrative Patent Judge.                                          

                                        DECISION ON APPEAL                                              

                     This is a decision on an appeal from the examiner=s                                

               final rejection of claims 1-24.1  No other claims are                                    

               pending in the application.                                                              

               1 Subsequent to the final rejection (Paper No. 6 mailed November 19,                     
               1996), claims 1 and 24 were amended in Paper No. 7 filed February 24,                    
               1997 and claim 15 was amended in Paper No. 22 filed March 15, 1999 to                    
               remove indefinite claim language from the independent claims. Although                   
               the examiner has indicated in the letter filed February 9, 1999 (Paper                   
               No. 20) in response to our remand (Paper No. 19), that the amendment to                  
               claim 15 would be entered upon being submitted in a paper separate from                  
               the reply brief, the record does not show as yet that this amendment                     
               has been formally entered.  We nevertheless presume that the amendment                   
               to claim 15 has been entered in view of the fact that the rejection of                   
               claim 15 and the other appealed claims under the second paragraph of 35                  
               U.S.C. ' 112 has not been carried forward and restated in the examiner=s                 
               supplemental answer (Paper No. 16).  We therefore presume that the                       

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