Appeal 2006-3252
Application 09/536,728
1 (3) A rejection of claims 21-24, 30-33, 39, 46, 61, 73-75, 77-79
2 and 81 as being unpatentable under § 103(a) over Stähle (U.S. Patent
3 4,213,995) was not reached because the panel felt that a remand was
4 in order to clarify certain aspects of the rejection.
5 (4) A rejection of claims 21-24, 30-33, 39-50, 55-65, and 71-72
6 based on provisional double patenting was remanded for further
7 consideration in view of the fact that the application on which the
8 provisional double patenting was based had issued as a patent.
9 (5) A rejection of claims 21-24, 30-33, 39-50, 55-65, and 71-72
10 as being unpatentable under § 103(a) over Stähle (EP 012,822) was
11 not decided.
12 See Ex parte Esser, Appeal 2005-0393 (Bd. Pat. App. & Int. Apr. 14, 2005).
13 The Examiner responded to the remand. Examiner's Communication
14 dated 26 August 2005.
15 Esser in turn filed a response. See Communication Concerning
16 Decision on Appeal and Remand, filed 09 June 2005. In the
17 communication, Esser says (page 2:1-4):
18 [Esser] … is not reopening prosecution or requesting rehearing
19 as to the new ground of rejection by the Board for Rejection II
20 under 37 C.F.R. § 41.50(b) [based on obviousness over York].
21 Accordingly, the remand for Rejection IV [relating to
22 provisional double patenting] is also moot as all the claims in
23 Rejection IV have also been rejected under Rejection II.
24 Since Esser has elected not to take advantage of available
25 administrative remedies (37 C.F.R. § 41.50(b) (1) & (2) (2006)), Esser has
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