Appeal No. 95-4632
Application No. 08/184,675
Nonaka et al. (Nonaka) 4,920,093 Apr. 24, 1990
Chen et al. (Chen) 5,072,035 Dec. 10, 1991
Matsuki et al. (Matsuki) 2 1-260870 Oct. 18, 1989
(Japanese Kokai)
Vest et al., (Vest) "Synthesis of Metallo-Organic Compounds for MOD Powders and Films,"
MRS Proceedings, Symposium L, Boston, MA, Dec. 2-4, 1985, pages 1-10.
ISSUES3
The issues presented for review are: (1) whether the examiner erred in rejecting claims 1, 2, 6-
9 and 14 under 35 U.S.C. § 103 as being unpatentable over Pebler in view of Vest and Chen, (2)
whether the examiner erred in rejecting claims 3-4, 10, 11, 13, 15 and 16 under 35 U.S.C. § 103 as
being unpatentable over Pebler in view of Vest and Chen as applied to claims 1, 2, 6-9 and 14 above,
and further in view of Nanao, and (3) whether the examiner erred in rejecting claims 5 and 12 under 35
2Our consideration of this reference is based on an English translation thereof, a copy of which is provided
to appellant with this decision.
3The final rejection of (i) claims 1, 2, 6-9 and 14 under 35 U.S.C. § 103 as unpatentable over Pebler in view of
Vest, (ii) claims 3, 4, 10, 11, 13 and 15-18 under 35 U.S.C. § 103 as unpatentable over Pebler in view of Vest and further
in view of Nanao, and (iii) claims 5 and 12 under 35 U.S.C. § 103 as unpatentable over Pebler in view of Vest and
further in view of Matsuki and Nonaka does not appear in the examiner's answer and the examiner has not indicated
the status of these rejections. Accordingly, the rejections are assumed to have been withdrawn. Ex parte Emm, 118
USPQ 180, 181 (Bd. App. 1957).
Although Chen was not relied on in the final rejections of claim 1-18, appellant not only presumed that Chen
should have been relied on but also fully addressed Chen in the Brief as to each of the three "ISSUES" above (see
pages 5-11). Consequently, there appears to be no prejudice to appellant in deciding the appeal on this record.
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