Appeal No. 2003-0677 Page 4
Application No. 09/759,950
be entered, however, the examiner also indicated that the response had overcome the
rejection under 35 U.S.C. § 112, second paragraph.
4. In the brief, the appellant noted that the rejection under 35 U.S.C. § 112, second
paragraph, had be overcomed, and that the sole issue under appeal was the rejection
of claims 1 and 3 to 9 under 35 U.S.C. § 103.
5. In the answer, the examiner stated that the appellant's statement of the issues in
the brief was correct. Nevertheless, the examiner thereafter stated that one of the
rejections applicable to the appealed claims was a rejection of claims 1 and 3 to 9
under 35 U.S.C. § 112, second paragraph, and that the appellant had not contested
this rejection but that the proposed and unentered amendment after final would
overcome this rejection.
6. In the response to the answer (Paper No. 11, filed November 23, 2002), the
appellant noted that it had been assumed that the rejection under 35 U.S.C. § 112,
second paragraph, had been resolved per the Advisory Action and that this response is
submitted for clarification of the examiner's continued rejection of claims 1 and 3 to 9
under 35 U.S.C. § 112, second paragraph.
7. The examiner did not respond to this request for clarification. Instead, the
examiner treated Paper No. 11 as a reply brief (see Paper No. 12, mailed December
12, 2002) and stated that the reply brief had been entered and that the application has
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