In re Burrows , 46 F.2d 715 ( 1931 )

Bland, Judge,

delivered the opinion of the court:

This case was decided on June 4, 1930, and this court reversed the decision of the board as to claims 14, 15, 16, ITj 22, 23, and 24, and affirmed the decision of the board as to claims 11, 12, 13, 18, 19, 20, 21, 25, and 26.

At the time of argument before this court, there being more claims in number than were required to cover appellant’s invention, counsel for appellant was asked if he would withdraw some of the claims, whereupon appellant’s counsel did withdraw a number of the claims, but which number did not include claims'll, 15, and 17.

After our decision was handed down, the solicitor for the Patent Office requested that the case be reconsidered and the opinion modified for the reason that at page 2 in the brief of appellant, claims 14, 15, and 17 had been withdrawn and were not discussed by appellant or by the solicitor for the Patent Office. Rehearing was granted and the case was reargued on January 8, 1931. The court has reconsidered the case and concludes that since claims 14, 15, and 17, on account of said withdrawal in the brief of appellant, were not considered as being before us for argument by the parties, they should not have been passed upon by this court.

Claims 14, 15, and 17 are now regarded as not being before us on appeal. Claim 16 was never withdrawn.. Claims 22, 23, and 24 having been withdrawn by reason of the suggestion of the court at the time of argument, the appellant upon rehearing requested that he be permitted to withdraw his withdrawal of the same. In view of these facts and the fact that claims 22, 23, and 24 were fully discussed by both sides, we shall regard them as having been before us for decision.

Our decision is, therefore, modified and the decision of the Board of Appeals is affirmed as to claims 11,12,13,18,19, 20, 21, 25, and 26, and reversed as to claims 16, 22, 23, and 24, and the appeal is dismissed as to claims 14,15, and 17.