Appeal No. 2002-0296 Page 4
Application No. 09/248,553
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
Initially we note that on pages 2 and 4 of the brief the appellant seeks our review
of the decision by the examiner (Paper No. 7) refusing entry of the amendment after
final filed August 7, 2000 (Paper No. 6). However, the refusal by the examiner to enter
the appellant's amendment after final rejection relates to a petitionable matter and not
to an appealable matter. See In re Schneider, 481 F.2d 1350, 1356-57, 179 USPQ 46,
51 (CCPA 1973) and In re Mindick, 371 F.2d 892, 894, 152 USPQ 566, 568 (CCPA
1967). See also Manual of Patent Examining Procedure § 1002(c), item 3(b) and
§ 1201. Thus, the relief sought by the appellant would have been properly presented
by a petition to the Commissioner under 37 CFR §§ 1.127 and 1.181 instead of by
appeal to this Board. Accordingly, we will not further consider this issue.
The enablement rejection
We will not sustain the rejection of claim 6 under 35 U.S.C. § 112, first
paragraph.
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