Appeal No. 2005-1004 3
Application No. 09/656,333
Claim 11 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Schaede in view of Munker.
Attention is directed to the main and reply briefs (filed
October 6, 2003 and February 17, 2004) and the final rejection
and answer (mailed April 25, 2003 and December 16, 2003) for the
respective positions of the appellant and the examiner regarding
the merits of these rejections.1
DISCUSSION
I. The 35 U.S.C. § 112, second paragraph, rejection of claims 7
and 9
The examiner’s determination (see page 2 in the final
rejection) that claims 7 and 9, which depend from claim 1, are
indefinite due to the presence of a number of terms lacking a
proper antecedent basis is reasonable on its face and has not
been disputed by the appellant on appeal.2
1 Although the answer does not include a restatement of the
35 U.S.C. § 112, second paragraph, rejection set forth in the
final rejection, the record does not contain any indication that
the examiner intended to withdraw this rejection. We therefore
assume that the examiner’s failure to restate the rejection was
an inadvertent oversight (see In re Bush, 296 F.2d 491, 496, 131
USPQ 263, 267 (CCPA 1961)).
2 The appellant, in apparent agreement with the examiner’s
assessment, attempted to amend claims 7 and 9 subsequent to final
rejection to overcome the rejection (see the paper filed July 28,
2003). The examiner, however, refused to enter the proposed
(continued...)
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