Appeal No. 1998-0456 Page 5
Application No. 08/454,706
brief, or the proposed amendment found in the brief. In a
second supplemental examiner's answer the examiner again
repeated the rejection of claims 9, 12, and 13 under 35 U.S.C.
§ 103(a) and stated (page 4) that "[i]n order to clarify the
record, the Examiner hereby states that the amendment to
claims 12 and 13 in Appellant's Reply Brief (Paper No. 10) has
overcome the new ground of rejection raised in the Examiner's
Answer (Paper No. 9). Therefore, the examiner is officially
withdrawing the 35 U.S.C.
§ 112, second paragraph rejection." Although the examiner has
not specifically referred to the rejection of claim 9 under 35
U.S.C. § 112, second paragraph, as the examiner has not
repeated this rejection, we consider the rejection of claim 9
under 35 U.S.C. § 112, second paragraph, to also be withdrawn.
However, we note that the proposed amendments to claims 9, 12,
and 13 have not been followed up with actual amendments to the
claims. It appears that the examiner has withdrawn the
rejection of claims 9, 12, and 13 under 35 U.S.C. § 112,
second paragraph based upon amendments that have not in fact
been made.
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