Appeal No. 1999-0653 Page 4
Application No. 08/226,564
then in effect did not expressly provide for a supplemental examiner's answer, MPEP
§ 1208.04 (Sixth Edition, Revision 3, July 1997) specifically provided that
[i]f the reply brief is filed in response to a new ground of rejection in the
examiner's answer, the examiner must issue a supplemental answer indicating
whether the new ground of rejection has been overcome, and, if it has not,
explaining why not [emphasis added].
As the appellant's reply brief was filed in response to the new ground of rejection of claims 1,
2 and 15 in the examiner's answer and as the examiner's supplemental answer provided an
explanation as to why the new ground of rejection was not overcome by the argument and
evidence submitted with the appellant's reply brief, the examiner's supplemental answer appears
to us to have been an appropriate execution of this instruction of the MPEP.
OPINION
In reaching our decision in this appeal, we have given careful consideration to the
appellant's specification and claims , to the applied prior art references, and to the respective5
5While this issue is not before us in this appeal, we note several inconsistencies between the limitations of
dependent claims and the underlying disclosure of the elected embodiments of Figures 1-5, 9 and 10. For example,
the recitation of a "unitary main body" defining a head locking aperture in claim 1 appears to read only on the
embodiment of Figure 10, since the head locking aperture in the devices of Figures 1-5 and 9 is on the head support
80 or 80', which is not part of the main body 16 or 16'. However, the further limitations of some of the dependent
claims, such as claim 2, appear to be directed only to Figures 1-5 and 9. Additionally, the further limitations of
claim 7 appear to be directed to Figure 6a, which is a non-elected embodiment, and not to Figures 1-5, 9 and 10.
We also note that claims 1 and 9 recite the "securing means," which appears to us to read on the anchoring holes and
anchoring tether, as an element distinct from the attachment means and anchoring tether. The examiner should
review the claim limitations in light of the appellant's underlying disclosure to determine whether they accurately
describe the invention. Further, on October 19, 1995 (Paper No. 7), the appellant filed a request for a drawing
change to Figure 9 to add the reference numeral 20' and a renewed request for this drawing change on September 12,
1996. It appears from our review of the application file that the examiner has not responded to that request on the
record. We leave this issue to be addressed in the event of further prosecution before the examiner.
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