Appeal No. 1999-0444
Application No. 08/758,655
35 U.S.C. § 103(a) as being unpatentable over Leutwyler ‘803
in view of Ross ‘860 or Council ‘046 or Crawford ‘642 and
Rubbo ‘494 and Rubbo ‘793 and further in view of Owens ‘316. 2
Rather than attempt to reiterate the examiner’s full
commentary with regard to the above-noted rejections and the
conflicting viewpoints advanced by the examiner and appellants
regarding the rejections, we make reference to the final
rejection (Paper No. 9, mailed October 28, 1997) and the
examiner’s answer (Paper No. 16, mailed August 31, 1998) for
the reasoning in support of the rejections, and to appellants’
2While the examiner has not expressly repeated all of the
rejections applicable to the claims before us on appeal in the
examiner’s answer (Paper No. 16), it is clear from a review of
the final rejection, appellants’ brief (Paper No. 15) and the
totality of the examiner’s answer (particularly sections 3, 6,
7, 8 and 9) that the rejections as stated above are those that
are before us for consideration on appeal. We are at a loss
to understand why all of the applicable prior art rejections
where not repeated in the examiner’s answer. Normally,
rejections of claims which are not repeated in the examiner’s
answer are considered to have been withdrawn by the examiner.
See, for example, Ex parte Emm, 118 USPQ 180 (Bd. App. 1957).
In the present case, we note that appellants’ grouping of the
claims as set forth on page 5 of the brief in no way relieves
the examiner of the obligation to expressly state in the
examiner’s answer exactly what rejections are before the Board
for review.
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