Appeal No. 2006-1746
Application No. 10/375,679
Moreover, the Examiner asserts (Answer 3) that the rejection of claim 35
under 35 U.S.C. § 103(a) as being unpatentable over Chester in view of Griffith
has not been withdrawn, but is not subject to review on appeal because Applicants
have not referred to this rejection in the Brief. We agree. From our review of the
Brief and the Reply Brief, we find not mention of this rejection, even though
Applicants could have responded to the Examiner's assertion in the Reply Brief.
Accordingly, we sustain the rejection of claim 35 under 35 U.S.C. § 103(a) pro
forma.
From all of the above, we find that the only rejections remaining for
Decision on Appeal are as follows:
Claims 36-52 stand rejected under 35 U.S.C. § 112 (first paragraph) as
failing to comply with the written description requirement.
Claims 1-8, 10-12, 15-18, 20, 21, 23-25, 28-31, and 33 stand rejected under
35 U.S.C. § 102(b) as being anticipated by Chester.
Claims 20 and 23-28 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Cory in view of Chester.
Claims 13, 14, and 19 stand rejected under 35 U.S.C. § 103(a) as being
unpatentable over Chester in view of Griffith.
Claim 1 is representative of the claims under appeal and reads as follows:
A nerve stimulation needle comprising:
- a hand graspable hub;
- a needle operably coupled to the hand graspable hub;
2 The amendment rewrote claim 32 into independent form.
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