Appeal No. 1999-2085
Application 07/839,409
Appellant filed a Reply Brief on January 28, 1998 (Paper No. 24). Therein,
appellant interpreted the Examiner's Answer as withdrawing the rejection under 35
U.S.C. § 112 as well as withdrawing portions of the rejections made under 35 U.S.C. §
103 in the Final Rejection. Appellant states on page 1 of the Reply Brief “[a]ny discussion
of Applicant's process claims and their steps is also conspicuously absent.” Appellant
then discussed what he considered to be new issues raised by the examiner in the
Examiner's answer.
The examiner issued a communication on April 30, 1998 (Paper No. 25)
acknowledging submission of the Reply Brief.
DISCUSSION
We, like appellant, will consider that the enablement rejection has been withdrawn
by the examiner. We will also assume that the two rejections set forth in the final rejection
under 35 U.S.C. § 103 have been withdrawn in favor of the rejection made under this
section of the statute in the Examiner's Answer. While the examiner's failure to list Schmitz
in the statement of the rejection is problematic, we have considered all three references in
reaching our decision.
The sum and substance of the examiner's rejection under 35 U.S.C. § 103(a) is set
forth on page 4 of the Examiner's Answer as follows:
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