Appeal No. 2006-0286
Application 10/272,624
The examiner erroneously states that appellants’ “statement of the grounds of rejection is
correct” (answer, page 3), and does not otherwise point out the deficiency with respect to the
ground of rejection of appealed claim 15 in the brief.
37 CFR § 41.37(c)(1)(vi) and (vii) (September 2004) provide that the appeal brief must
set forth a “statement of each ground of rejection presented for review” and “[t]he contentions of
appellant with respect to each ground of rejection presented for review,” respectively. See
MPEP § 1205.02 (8th ed., Rev. 3, August 2005; 1200-14 – 1200-15). Where appellants do not
present a ground of rejection for review in the brief, the appeal is considered to be withdrawn
with respect to that ground and the “withdrawal is treated as an authorization to cancel the
withdrawn claims.” MPEP §§ 1214.05 and 1215.03 (8th ed., Rev. 3, August 2005).
37 CFR § 41.37(d) (September 2004) provides that appellants will be notified of any
deficiency in the brief under the rules and provided with the opportunity to correct the
deficiency. See MPEP § 1205.03 (8th ed., Rev. 3, August 2005).
Accordingly, the examiner is required to take appropriate action consistent with current
examining practice and procedure to notify appellants of the deficiency in the brief with respect
to the ground of rejection of appealed claim 15 that we have discussed above and provide
appellants with the opportunity to cure the same in order to avoid withdrawal of the appeal and
its consequences with respect to this claim, with a view toward placing this application in
condition for decision on appeal with respect to the issues presented.
This remand is not made for the purpose of directing the examiner to further consider the
grounds of rejection.
We hereby remand this application to the examiner, via the Office of a Director of the
Technology Center, for appropriate action in view of the above comments.
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