Appeal No. 94-2477
Application 07/893,554
Rather than spend the resources of the Board to determine whether the
examiner’s rejection under 35 U.S.C. § 103 is properly supported by the two abstracts,
we have considered the full text articles. As a result, we find that the Vaupel article is
significantly less relevant prior art in determing the patentability of the claimed subject
matter, than Noyes and other prior art contained in this record. Furthermore, the
statement of the rejection appearing at page 3-4 of the Examiner’s Answer is not a
model of clarity. The examiner first states that the two abstracts are used in
combination, yet the subsequent explanation of the rejection does not explain how the
examiner proposes to combine the two disclosures. In view of the confusion
surrounding exactly what information the examiner is relying upon in making the
rejection, the confusing nature of the statement of the rejection, as well as our
discovery of more relevant prior art in this record, we reverse the examiner’s rejection
and institute the following new grounds of rejection under 37 CFR § 1.196(b).
New Grounds of Rejection
Under the provisions of 37 CFR § 1.196(b), we make the following new grounds
of rejection.
Claims 1, 2, 4 through 6, 8 through 10 and 12 are rejected under 35 U.S.C.
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