Appeal No. 2002-1809 Page 2
Application No. 09/798,050
The argument (p. 2) raised by the appellant is that this panel of the Board of Patent
Appeals and Interferences overlooked the fact that
the Wier prior art was withdrawn and deemed in the EXAMINER'S ANSWER at
page 5 in the last paragraph as "art rejections of non-final Office Action of June 26,
2001 [that] are no longer applied to the appealed claim."
We have carefully considered the argument raised by the appellant in the request
for rehearing, however, the argument therein does not persuade us that our decision was
in error in any respect. In fact, the argument does not set forth any error in our
determination that claim 3 was unpatentable under 35 U.S.C. § 103 over the combined
teachings of APA and Wier.
We do not agree with the appellant's apparent argument that Wier was withdrawn
as prior art being applied against claim 3 for the following reasons: (1) Weir was cited and
applied against claim 3 in the final rejection (Paper No. 5, mailed October 9, 2001);
(2) Weir was cited and applied against claim 3 in the examiner's answer (Paper No. 8,
mailed March 21, 2002); and (3) on page 2 of the answer, the examiner stated that "[t]he
appellant's statement of the issues in the brief is correct" and the sole issue set forth on
page 3 of the appellant's brief (Paper No. 6, filed January 18, 2002) was whether claim 3
on appeal is unpatentable under 35 U.S.C. § 103 over the APA in view of Wier. While the
examiner did state on page 5 of the answer that "[i]n response to arguments of lines 17
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