Appeal No. 1999-2345
Application No. 08/610,758
We refer to the Final Rejection (mailed Nov. 9, 1998) and the Examiner's Answer
(mailed Apr. 16, 1999) for a statement of the examiner's position and to the Brief (filed
Mar. 19, 1999) and the Reply Brief (filed Jun. 14, 1999) for appellants' position with
respect to the claims which stand rejected.
OPINION
Appellants submitted an amendment on May 22, 1998, subsequent to the
examiner's Final Rejection, which was entered by the examiner. We note, however,
that appellants' Reply Brief contains a section referring to a "proposed amendment."
The examiner did not indicate consideration of the "proposed amendment" as
submission of an amendment after final action, as contemplated by 37 C.F.R. § 1.116.
The Reply Brief section was not marked as a proposed amendment under 37 C.F.R.
§ 1.116. Nor do the accompanying remarks indicate that the "proposed amendment"
was to be considered for entry prior to jurisdiction of the application passing to the
Board: "Alternatively, should the Board determine that the Examiner has properly
construed the teachings of Beveridge, Appellant [sic] proposes the following
amendment to the claims...." (Reply Brief at 4.) We therefore consider the claims
before us as amended by appellants' submission filed May 22, 1998, and consistent
with the Appendix of claims submitted with appellants' principal brief (filed Mar. 19,
1999).
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