Appeal No. 2001-2268
Application 08/922,581
OPINION
We have carefully considered the subject matter on
appeal, the rejections advanced by the examiner and the evidence
of anticipation and obviousness relied upon by the examiner as
support for the prior art rejections. We have, likewise,
reviewed and taken into consideration, in reaching our decision,
the appellants’ arguments set forth in the briefs along with the
examiner’s rationale in support of the rejections and arguments
in rebuttal set forth in the examiner’s answer.
It is our view, after consideration of the record before
us, that the evidence relied upon supports the examiner’s
rejection of claims 1, 3, 6 and 37. We reach the opposite
conclusion with respect to claims 4, 5, 9-11, 16-23, 29 and 43.
We are also of the view that the rejection of claims 24-28 as
being indefinite is in error. Accordingly, we affirm-in-part.
We consider first the rejection of claims 24-28 under 35
U.S.C. § 112, second paragraph, as being indefinite. As a result
of a restriction requirement made early in the prosecution of
this application, claims 24-28 were determined to be directed to
a non-elected invention and were withdrawn from further
consideration by the examiner. Despite the supposed withdrawal
of these claims from further consideration, however, the examiner
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