Appeal No. 2003-0931
Application 09/383,508
specification and claims which led to the examiner’s rejection
and the majority’s affirmance thereof.
As the appellants chose to take this case to appeal without
attempting to overcome the rejection by amendment, it is not
clear why, now that the examiner’s position has been validated on
appeal, they are being afforded the right conveyed by the
majority’s action under 37 CFR § 1.196(c) to amend the claims 1,
9, 12 and 19 by changing “bays” to either --docking locations--
or --locations--. Furthermore, the above noted inconsistencies
in what has been variously disclosed, claimed and argued by the
appellants, considered with the fact that the appellants had
previously amended claim 1 to change “locations” to “bays” (see
Paper No. 7), cast substantial doubt on the majority’s implicit
determination, which is binding on the examiner, that claims 1
through 4, 6 through 9, 12 and 19 as so amended would
particularly point out and distinctly claim the subject matter
the appellants regard as their invention. This issue would be
far better settled through continued prosecution before the
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