Appeal No. 2003-0677 Page 5
Application No. 09/759,950
been forwarded to the Board of Patent Appeals and Interferences for decision on the
appeal.
Since the rejection of claims 1 and 3 to 9 under 35 U.S.C. § 112, second
paragraph, was set forth in both the final rejection and the answer, it is our view that
rejection under 35 U.S.C. § 112, second paragraph, is properly before us in this appeal.
Since the appellant has not specifically contested the rejection under 35 U.S.C.
§ 112, second paragraph, we summarily sustain the rejection of claims 1 and 3 to 9
under 35 U.S.C. § 112, second paragraph. However, in the interest of justice we
include herewith an explicit statement under 37 CFR § 1.196(c)1 that the proposed
amendments to claims 1 and 3 set forth in the response under 37 CFR § 1.116 (Paper
No. 6, filed July 10, 2002) may be allowed if submitted in amended form omitting the
word "single" in claim 1.
We now turn to the rejection of claims 1 and 3 to 9 under 35 U.S.C. § 103.
1 37 CFR § 1.196(c) provides:
Should the decision of the Board of Patent Appeals and Interferences include an explicit
statement that a claim may be allowed in amended form, appellant shall have the right to amend
in conformity with such statement which shall be binding upon the examiner in the absence of new
references or grounds of rejection.
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