Appeal No. 2002-0783 Page 3
Application No. 09/268,957
Deliberations
Our deliberations in this matter have included evaluation and review of the
following materials: (1) the instant specification, including all of the claims on appeal;
(2) applicant's Appeal Brief (Paper No. 10); (3) the Examiner's Answer (Paper No. 11);
(4) the Reply Brief (Paper No. 12) excluding Exhibits A-E attached thereto; and (5) the
above-cited prior art references.
On consideration of the record, including the above-listed materials, we affirm
the examiner's rejection under 35 U.S.C. § 103(a).
Procedure
Applicant filed a Reply Brief received at the USPTO February 23, 2001 (Paper
No. 12). As stated in 37 CFR § 1.193(b)(1), "The primary examiner must either
acknowledge receipt and entry of the reply brief or withdraw the final rejection and
reopen prosecution to respond to the reply brief." Here, the examiner did not withdraw
the final rejection and reopen prosecution. It follows that the Reply Brief has been
entered and made part of the administrative record (id.); this is consistent with the
Office communication mailed May 7, 1991 (Paper No. 14), stating that the Reply Brief
has been entered.
In his Reply Brief, applicant argues that the examiner's proposed combination of
references is improper. Applicant relies on Exhibits A-E, attached to the Reply Brief, to
support that argument. However, as stated in 37 CFR § 1.195, "Affidavits, declarations,
or exhibits submitted afer the case has been appealed will not be admitted without a
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