Appeal 2006-2302
Application 10/617,270
The Appeal Brief filed October 27, 2005 includes a Status of
Amendments section and a Claims Appendix that reflects entry of an
Amendment after Final Rejection filed August 25, 2005 at least as to claims
1, 3, 5, 32, and 33 (Br. 2). However, an Advisory Action mailed September
15, 2005 indicates that the Amendment after Final Rejection filed August
25, 2005 was not entered. No exception as to the entry of amendments to
claims 1, 3, 5, 32, and 33 is furnished in that Advisory Action. The
Examiner’s Answer appears to be inconsistent with the file record as
reflected by the above-noted Advisory Action (Answer 3, Item 4).
This inconsistency in the record requires resolution prior to our
rendering a decision on this appeal. In addition, we note that appealed
product claims 30 and 31 have received little, if any, attention in the Final
Office Action and the Answer leaving an undeveloped appeal record with
regard thereto.
37 C.F.R. § 41.37(d) (2006) states that:
If a brief is filed which does not comply with all the
requirements of paragraph (c) of this section, appellant will be
notified of the reasons for non-compliance and given a time
period within which to file an amended brief. If appellant does
not file an amended brief within the set time period, or files an
amended brief which does not overcome all the reasons for non-
compliance stated in the notification, the appeal will stand
dismissed.
Thus, upon return of this application, the Examiner should review the
above-noted matters and take appropriate action to correct the record.
We note that Appellant’s complete position on appeal should be
presented in any amended Brief that may be filed in response to any
Notification of Defective Brief prepared and mailed by the Examiner in
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