Appeal No. 2000-0075
Application 08/969,941
have been canceled. Claims 100 through 103, the only other
claims pending in this application, have no rejection against
them and appear to have never been examined by the examiner.1
In the examiner’s answer (page 3), the examiner has not listed
the Wang et al. Patent (5,577,364) as being relied upon in the
rejection of claims under appeal. In addition, the examiner
has not repeated the rejections of claims 23 through 25 and 30
through 32 under 35 U.S.C. § 103 or the rejection of claims
26 and 27 under 35 U.S.C. § 103 as set forth in the Office
action mailed June 8, 1999 (Paper No. 7). Instead, the
examiner merely lists claims 23 through 27 and 30 through 32
on page 2 of the examiner’s answer as “objected to.” Given
the examiner’s failure to repeat the rejections of claims 23
1In reviewing the record of this application, we note
that unexamined claims 100 through 103 are directed to an
apparatus for charging a closed metallic canister with a gas
under pressure and that claims 33 through 43 (which are part
of the claims subject to the examiner’s restriction
requirement) are likewise directed to such an apparatus. Given
that the claims before us on appeal are also directed to an
apparatus for charging a closed metallic canister with a gas
under pressure, it appears that claims 33 through 43 and 100
through 103 are not patentably distinct from claims 1 through
32 and 54 through 58 that are before us on appeal. The issue
of the proper status of claims 33 through 43 and 100 through
103 should be resolved during any further prosecution of this
application before the examiner.
2
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