Appeal No. 2001-0238
Application No. 08/859,020
micon is unaffected by the removal of the material. (Appeal
Brief, page 3, lines 5 - 15).
Discussion
I. Preliminary Matters
A. Non-Entry of Amendment
The appellants have attempted to appeal the decision of the
examiner to not enter the amendment filed September 17, 1999.
See, e.g. page 9, lines 2-3 and page 15, line 16 - page 16, line
10 of the Appeal Brief. This issue is not properly before this
panel of the Board of Patent Appeals and Interferences; rather,
it is a petitionable issue. We have no authority to review that
decision. See In re Mindick, 371 F.2d 892, 894, 152 USPQ 566, 568
(CCPA 1967) (refusal of examiner to enter an amendment after
final rejection of claims is a matter of discretion; if there is
an abuse of discretion, the matter may be remedied by petition to
the Commissioner of Patents; Board of Appeals does not consider
the issue whether examiner's refusal to enter proposed amendment
after final rejection constituted an abuse of discretion); In re
Pavlecka, 319 F.2d 180, 188, 138 USPQ 118, 125 (CCPA 1963) (the
non-entry of amendments is a procedural matter outside board's
jurisdiction).
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