Appeal No. 2006-0325 Παγε 3
Application No. 10/152,485
a pair of cross-coupling elements coupled to the
pedicle screws;
wherein the combination of dampening and cross-
coupling elements limits relative movement between the
upper and lower vertebra in some directions while permitting
relative movement in other directions.
The Rejections
The examiner's answer fails to re-state any ground of rejection of the claims and
is thus not in compliance with 37 CFR § 41.39(a)(1) or Section 1207.02 of the Manual of
Patent Examining Procedure (MPEP). Normally, a rejection will be assumed to be
withdrawn because of an examiner's failure to carry such rejection forward and to
restate it in the answer. Ex parte Emm, 118 USPQ 180, 181 (Bd. App. 1957).
Accordingly, this panel would be justified in treating all rejections as having been
withdrawn, dismissing the appeal as moot and returning jurisdiction of the application to
the primary the examiner, with no standing rejections of the claims. As such action
would unfairly prejudice appellant and as we can infer from the examiner's remarks in
Section (6) on page 3 of the answer (mailed August 10, 2005) an intention to maintain
all rejections set forth in the final rejection (mailed October 29, 2004) and raised as
issues in the appeal brief (filed May 4, 2005), with the exception of the indefiniteness
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