Appeal No. 2006-0593 Page 6
Application No. 09/895,611
the second axis” cannot reasonably be read, in light of appellant’s specification, as
requiring that the three axes of rotation be substantially orthogonal to one another at all
times during the rotation.
In light of the above, the appellant’s line of argument is not persuasive of any
error on the part of the examiner in determining that claims 3, 4, 6 and 7 are anticipated
by von der Heide or rendered unpatentable over Pitavy in view of any of Pivar, Lin,
Bavers, Friesen, Mankowich and von der Heide. The rejections are sustained.
The appellant contends that the examiner’s objection to the amended
specification under 35 U.S.C. § 132 as containing new matter is an appealable issue,
presumably on the basis that Section 2163.06 of the Manual of Patent Examining
Procedure (MPEP) indicates that “If both the claims and specification contain new
matter either directly or indirectly, and there has been both a rejection and objection by
the examiner, the issue becomes appealable and should not be decided by petition”
(brief, page 12). We are not, however, presented with the situation described in that
section of the MPEP. Specifically, while it is true that the examiner has both objected to
new matter in the specification and rejected claims 3, 4, 6 and 7, the examiner has not
rejected the claims as containing new matter (or lacking written description support) and
has not alleged that the particular subject matter in the specification characterized by
the examiner as new matter is present in any of the claims. In this instance, for the
reasons discussed above, the determination with regard to the objection to the
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