Appeal No. 95-1528
Application 07/952,684
not include Kaitz in the statement of the rejection or cite or
consider Kaitz’ teaching to treat either incubating eggs or new-
born chicks with a disinfectant in a chamber containing either
incubating eggs or new-born chicks. While we might ad hoc
consider Kaitz’ teaching in its entirety and combine them with
the teachings of Frankel and Sheldon and/or broadly consider the
meaning of the term “disinfectant” in appellants’ claims for the
first time in light of the specification and reconsider Frankel’s
teaching in that new light with or without entering a new ground
of rejection, we are constrained to simply reverse the appealed
rejection and remand the case to the examiner for further
prosecution in line with this decision and our remarks. To
reverse and remand is, in our view, the action which best
respects the court’s admonition in In re Hoch, 428 F.2d 1341,
1342 n. 3, 166 USPQ 406, 407 n. 3 (CCPA 1970) of the practice of
relying on prior art not included in the statement of the
rejection on review and our authority under 35 U.S.C. § 134.
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