Appeal No. 1999-1637
Application 08/417,537
channel region including channel length 923 and, more importantly, that the control gate
909 of the floating gate transistor 921 serves as the control gate for transistor 921 as well
as the gate for the select transistor 922. We agree with the interpretation of Wong and
such is buttressed by the discussion at column 8, lines 30-38, for example, of Wong.
As we read the discussion of the rejection under 35 U.S.C. § 102 at pages 5-8 of
the reply brief, appellants appear to implicitly agree with the examiner’s characterization
with respect to Figure 9, but seem to complain of some element of surprise with respect to
the examiner’s reliance upon this figure. Again, this rejection was initially stated in Paper
No. 21 on September 16, 1998. From this rejection appellants filed a Notice of Appeal on
December 14, 1998 and their brief on December 21, 1998. No responsive argument or
secondary amendment was supplied in response to the non final rejection in Paper No. 21
before appeal was taken. The examiner maintained the same position in the answer as to
how he viewed the applicability of Figures 9 and 10 to the noted claims on appeal in the
same manner done in the rejection in Paper No. 21. It appears to us that appellants have
lost the opportunity to amend the claims on appeal to read over or distinguish the features
taught and suggested in Figures 9 and 10 of Wong. We are not persuaded of any reason
to invoke our powers within 37 CFR §1.196(c) as requested in the reply brief. Since the
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