Appeal No. 1999-2278 Page 2
Application No. 08/641,442
rejection of claims 3-7 has been withdrawn. Appellants
assert (brief, page 2) that the rejection of claim 9 is not
being appealed because the proposed amendment to claim 9 has
not been entered by the examiner. Appellants additionally
assert (id.) that claim 10 is allowable if written in
independent form because claim 10 was only rejected under 35
U.S.C. § 112, second paragraph, and that this rejection has
been withdrawn by the examiner .1
We observe that the only claims rejected by the examiner
in the answer are claims 1, 2, and 8, which stand rejected
under 35 U.S.C. § 102(b). In sum, the rejection of claims 3-7
and 10 has been withdrawn by the examiner, the appeal is
dismissed as to claim 9, and rejected claims 1, 2, and 8
remain before us for decision on appeal.
BACKGROUND
1Appellants state (brief, page 2) that the amendment to claim 10 is
assumed to have been entered in view of the examiner's withdrawal of the
rejection of claim 10 under 35 U.S.C. § 112, second paragraph. As to whether
or not the amendment to claim 10 has been entered, or whether the examiner
determined that claim 10 was definite without the amendment, we consider to be
a formal matter to be resolved by the examiner and appellants subsequent to
this appeal. We do not address this rejection of claim 10 under 35 U.S.C.
§ 112, second paragraph in this decision.
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