Appeal No. 2002-2015 Page 5
Application No. 09/232,138
that the case it [sic] will be considered on the basis as if the
amendments [sic, amendment] were entered, as they [sic, it]
should have been.”
We decline to rule that the amendment presented subsequent
to the final rejection should have been entered. The refusal by
the examiner to enter appellant's amendment after final rejection
relates to a petitionable matter and not to an appealable matter.
See In re Schneider, 481 F.2d 1350, 1356-57, 179 USPQ 46, 51
(CCPA 1973) and In re Mindick, 371 F.2d 892, 894, 152 USPQ 566,
568 (CCPA 1967). See also Manual of Patent Examining Procedure
(MPEP) (8th Ed., August 2001) § 1002.02(c), item 3(g) and § 1201.
Thus, the relief sought by the appellants would have been
properly presented by a petition to the Commissioner under 37 CFR
§§ 1.127 and 1.181 instead of by appeal to this Board. Because
appellant has not timely petitioned the decision of the examiner
refusing entry of the amendment, we find the issue to be moot.
Accordingly, we will not further consider this issue, and will
address the claims as they appear in Appendix II.
We begin with the rejection of claims 1-3, 6-11, 15, 16, 18,
and 19 under 35 U.S.C. § 102(b) as being anticipated by Hatchett.
Anticipation is a question of fact. In re King, 801 F.2d 1324,
1326, 231 USPQ 136, 138 (Fed. Cir. 1986). The inquiry as to
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