Appeal No. 2002-1216
Application No. 09/034,466
Claims 1, 4, 6 and 9 stand rejected under 35 U.S.C. § 102(b)
as being anticipated by Budde.
Claims 2, 5, 7, 10 and 11 stand rejected under 35 U.S.C.
§ 103(a) as being unpatentable over Budde.
We make reference to the answer (Paper No. 23, mailed
June 18, 2001) for the Examiner’s complete reasoning, and to the
appeal brief (Paper No. 22, filed May 2, 2001) for Appellants’
arguments thereagainst.
OPINION
With respect to the 35 U.S.C. § 112 rejection of claims 9
and 102, we note that the Examiner’s denial to enter an amendment
relates to a petitionable matter and not to an appealable matter.
See Manual of Patent Examining Procedure (MPEP) §§ 1002 and 1201.
Accordingly, we will not review the issue of the entry of the
amendment to claims 9 and 103 (brief, page 11) and will sustain
the 35 U.S.C. § 112 rejection pro forma.
2 Claim 9 depends upon the canceled claim 8 whereas claim 10 is
dependant on claim 9. Appellants in an amendment to the claims (Paper No. 19,
filed February 15, 2001) have attempted to correct the dependency of claims 9
and 10 by amending them to depend on claim 7. The Examiner has denied entry
of the amendment to these claims and has indicated, as noted in the advisory
action (Paper No. 20, mailed February 20, 2001), that the amendment raises new
issue.
3 Notwithstanding the Examiner’s denial to enter the amendment to
claims 9 and 10, we observe that the amendment merely makes the claims broader
in scope than their original form, but does not add limitations that have not
been previously presented to and considered by the Examiner.
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