Appeal 2007-0796
Application 10/236,088
well founded because, as pointed out by the Examiner (Ans. 5), spring 28 of
Genuise is such a means for biasing. The rejection is sustained as to claim
22.
Rejection (3)
As an initial matter, Appellant complains that, because of a
misstatement in the Final Rejection (mailed November 4, 2005) regarding
whether or not Fisher discloses a cap and container and untimely correction
of this misstatement in the Answer, the grounds of rejection in the Final
Rejection were not "fully developed" so as to give Appellant an adequate
opportunity to respond and judge the advisability of appeal and requests the
Board to take into account the disadvantage of Appellant in preparing
responses to the Final Rejection when reviewing the record (Reply Br. 10).
If Appellant believed that the Examiner's correction of the misstatement
effectively constituted a new ground of rejection in the Answer, Appellant
could have filed a petition under 37 C.F.R. § 1.181(a) within two months
from the mailing of the Answer requesting that the rejection be designated as
a new ground of rejection. Appellant opted not to do this and instead filed a
Reply Brief, thereby waiving any allegation that the Answer contains a new
ground of rejection. See Manual of Patent Examining Procedure (MPEP)
§ 1207.03 IV (Rev. 3, August 2005). We are constrained to consider the
record as it stands.
Fisher discloses a combined writing instrument and calendar 10
comprising a barrel 11 provided with internally threaded ends 12, 13
receiving the threaded portion 14 at the top of a mechanical pencil 15 and a
screw plug cap 18, respectively. An elongated slot 16 is formed in barrel 11.
(Fisher 1, col. 2, ll. 13-35.) A cylindrical housing 19 housing a spiral spring
13
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