Appeal No. 2006-1321
Application No. 09/838,866
However, in the brief filed July 19, 2004 appellant indicates on
page 2 that “Claims 1 through 14 are being appealed” and
specifically requests that “Claims 15 and 16 be withdrawn from
further consideration.”
Notwithstanding the foregoing, in the examiner’s answer
mailed October 7, 2004 the examiner continues to maintain the
rejection of claims 1-16 under 35 U.S.C. § 103(a). Making no
comment whatsoever regarding appellant’s request that claims 15
and 16 be withdrawn from further consideration. In responses
filed subsequent to the examiner’s answer, it appears that
appellant is again seeking allowance of claims 1 through 16 (see
page 12 of the reply brief filed November 12, 2004 and pages 1
and 9 of the reply brief filed June 6, 2005). Thus, we are at
somewhat of a loss concerning the actual status of claims 15 and
16 in the present application. Accordingly, we remand the
application to the examiner to clarify the status of claims 15
and 16. It appears that the examiner, in response to the brief
filed July 19, 2004, should have withdrawn claims 15 and 16 from
further consideration and dismissed the appeal as to those
claims.
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