Appeal No. 2003-0693
Application No. 09/006,248
In rejecting independent claim 39 and claim 40 that depends
therefrom on this ground of rejection, the examiner correctly notes
that the term “said member” in line 3 of claim 39 lacks a proper
antecedent. According to the examiner, this claim deficiency
renders the claims indefinite. Appellants have not specifically
disputed the examiner’s position, but have instead pointed to
proposed changes to claim 39 contained in the amendment after final
that was refused entry by the examiner.2 Since appellants have not
taken issue with the examiner’s position regarding the
indefiniteness of claims 39 and 40, we summarily sustain this
rejection.
(2) The § 103 rejection of claims 1-16 and 18
We do not sustain the § 103 rejection of claim 1, or claims
2-16 and 18 that depend therefrom, as being unpatentable over Blatt
‘276 in view of Hurlimann, Vachtsevanos, Kraft and Blatt ‘566.
2Appellants request entry and favorable consideration of the
proposed amendment after final. Under 35 U.S.C. § 134 and 37 CFR
1.191, appeals to the Board of Patent Appeals and Interferences
are taken from the decision of the primary examiner to reject
claims. We exercise no general supervisory power over the
examining corps and decisions within the primary examiner’s
discretion, such as whether or not to enter an amendment after
final rejection, are not subject to our review. See, for
example, In re Mindick, 371 F.2d 892, 894, 152 USPQ 566, 568
(CCPA 1967). Thus, the relief sought by appellants would have
properly been presented by a petition to the Commission under 37
CFR 181.
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