Appeal No. 1999-0107
Application No. 08/700,427
improperly set forth for the first time in the answer. Having
carefully reviewed the examiner’s final rejection and answer, we
find no support for this contention. Although the format is
somewhat different, the substance and thrust of the rejections
contained in the final rejection and answer are the same. In any
event, the question of whether an examiner’s answer contains an
improper new ground of rejection is a matter which is not
directly connected with the merits of issues involving a
rejection of claims. It is therefore reviewable by petition to
the Commissioner rather than by appeal to this Board. See In re
Hengehold, 440 F.2d 1395, 1403-1404, 169 USPQ 473, 479 (CCPA
1971).
Turning now to the matters at hand which are reviewable by
this Board, the 35 U.S.C. § 112, second paragraph, rejection
rests on the examiner’s determination that claim 3 is indefinite
because it contains alternative language (see pages 3, 4, 7 and 8
in the answer). Claim 3 depends from claim 2 and recites that
the chemicals “are either dissolved or dispersed either in a
liquid or in a gel, or are either in the form of water-
dispersible powders or granulates.” The use of such alternative
expressions, however, does not necessarily render a claim
indefinite. See In re Gaubert, 524 F.2d 1222, 1227, 187 USPQ
4
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