Appeal No. 2003-0501
Application No. 09/110,455
We noted in our decision that the examiner's statement of
the rejection in the Answer did not include claim 8. As a
result, we considered the examiner's final rejection of claim 8
to have been withdrawn by the examiner (see footnote at page 2 of
decision). However, as noted by appellants in their request, the
examiner's allowance of claim 8 would be inconsistent with our
decision sustaining the examiner's rejection of claim 11, which
is narrower in scope than claim 8. Also, appellants note that
they stated in their Brief that "[c]laims 8, 11 and 18 stand or
fall together" (page 4 of Brief).
Due to this inconsistency we will not, as urged by
appellants, reverse the examiner's rejection of claim 11.
Rather, upon reconsideration of the Examiner's Answer, we find
that the examiner's omission of claim 8 in the statement of the
rejection was inadvertent error. In relevant part, the examiner
states the following at page 2 of the Answer:
Claims 1-18, 20 and 21 were under a final
rejection as set forth in the final Office Action dated
March 23, 2001. Claim 19 was cancelled. Claims 10,
12, 20, 21 are allowed after further consideration of
Appellant's [sic, Appellants'] appeal brief such that
only claims 1-9, 11, 13-18 are now the subject of
Appellant's [sic, Appellants'] appeal.
Clearly, it was the intent of the examiner to maintain the final
rejection of claim 8 in the Answer. Also, since appellants'
-2-
Page: Previous 1 2 3 4 5 6 Next
Last modified: November 3, 2007