Appeal No. 2001-0931 Page 3
Application No. 09/104,476
Initially we note the examiner’s statement (Answer, page 3), “[t]he copy of
the appealed claims contained in the Appendix to the [B]rief is incorrect and
does not reflect the amendments made to the claims in [P]aper #8 received
12/30/99.” The examiner, however, failed to identify which claims were
incorrectly copied. Upon review of Paper No. 8, pages 1-2 we find that claims 1,
3 and 5 were amended. Comparing these three claims to appellants’ “Appendix
of Claims Involved in the Appeal” (the Appendix) the only inconsistency we find
is that the Appendix includes two claims numbered “3”. Upon further inspection
of the record, we find that the first occurrence of claim 3 (at page 11 of the
Appendix) recites claim 3 as it was originally presented. At page 12 of the
Appendix, claim 3 is noted as “amended” and reflects the changes made in the
December 30, 1999 amendment.
Therefore, it appears that the examiner’s concern is that the copy of the
appealed claims contained in the Appendix includes two copies of claim 3, one
of which is correct and is labeled “amended”. If this is the examiner’s only
concern then the examiner should have clearly stated that the Appendix includes
two copies of claim 3, and that the first occurrence on page 11 is not correct.
We note however, that the examiner’s failure to clearly and concisely explain his
position follows through to the remaining issues on appeal.
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