Appeal 2006-3344
Application 10/202,150
Examiner repeats all of the aforementioned 35 U.S.C. § 103(a) rejections in
the Answer.
BASIS FOR REMAND
37 C.F.R. § 41.37(c)(1)(vi) and (vii) (2005) provide that the Appeal
Brief must set forth a “statement of each ground of rejection presented for
review” and “[t]he contentions of appellant with respect to each ground of
rejection presented for review in paragraph (c)(1)(vi) of this section,”
respectively. See also MPEP § 1205.02 (8th ed., Rev. 3, August 2005;
1200-14 – 1200-15). Where Appellants do not present a ground of rejection
for review in the Brief, the appeal is considered to be withdrawn with
respect to that ground and the “withdrawal is treated as an authorization to
cancel the withdrawn claims.” MPEP §§ 1214.05 and 1215.03 (8th ed., Rev.
3, August 2005).
37 C.F.R. § 41.37(d) (September 2004) provides that Appellants will
be notified of any deficiency in the Brief under the rules and provided with
the opportunity to correct the deficiency. See MPEP § 1205.03 (8th ed.,
Rev. 3, August 2005).
Here, the Examiner should afford Appellants an opportunity to clarify
the record as to whether or not the separate rejections of claims 3, 9, 13, 14,
and 17 under 35 U.S.C. § 103(a), as set forth in the Final Rejection, are
being appealed or whether Appellants are, in effect, waiving their right to
pursue these rejected claims in this application (appeal withdrawn as to these
claims). The Examiner should take appropriate action consistent with
current examining practice and procedure to notify Appellants of the
deficiency in the Brief with respect to the lack of argument therein
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Last modified: September 9, 2013