Appeal No. 1999-1280
Application No. 08/379,813
maxilla. The invention involves treatment of periodontal lesions or defects with bone
morphogenetic proteins (BMPs), preferably those with osteogenic activity and/or
ligament-inducing activity (specification, page 4).
THE REJECTION UNDER 35 U.S.C. § 112, FIRST PARAGRAPH:
We recognize as did the examiner (Answer, page 9) that appellants’ Brief failed
to address the rejection under 35 U.S.C. § 112, first paragraph. In this regard, we note
as set forth in 37 C.F.R. § 1.192(c)(8)(1997) “[t]he brief shall contain... [t]he contentions
of appellant with respect to each of the issues presented for review.…” However, in
contrast to procedure followed by this examiner, the proper procedure for handling a
deficiency in the Brief is set forth in 37 C.F.R. §1.192(d)(1997) “[i]f a brief is filed which
does not comply with all the requirements of paragraph (c) of this section, appellant will
be notified of the reasons for non-compliance and provided with a period of one month
within which to file an amended brief.…”
On this record, the examiner failed to follow the procedure set forth in 37 C.F.R.
§1.192(d) (1997). Nevertheless, appellants recognized the deficiency and presented
arguments with a proposed amendment in their Reply Brief. We note that the examiner
considered (Supplemental Answer, page 3) appellants’ supplemental arguments
presented in the Reply Brief. Thus, the examiner’s procedural error is moot.
We note that the examiner did not enter appellants’ amended claims presented
in Reply Brief section entitled “PROPOSED AMENDED CLAIMS.” See Supplemental
Answer, page 2. Although the examiner=s rationale for denying entry is unclear, we
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