Appeal No. 98-1194
Application 08/630,669
The references relied upon by the examiner as evidence of
obviousness are:2
Eiseman 1,216,425 Feb. 20, 1917
Casey et al. (Casey) 2,324,277 Jul. 13,
1943
Claims 1, 7 and 8 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Eiseman in view of Casey and vice
versa.
Reference is made to the appellant's main and reply
briefs (Paper Nos. 12 and 15) and to the examiner's answer
(Paper No. 14) for the respective positions of the appellant
and the examiner with regard to the merits of this rejection.
Eiseman discloses an inflatable toy comprising "a casing
[10] of fabric or like inelastic material of oval, egg-shape
or other elongated form and a substantially spherical
inflatable balloon [17] within the casing, the balloon being
2 Although the examiner has relied on U.S. Patent No.
3,923,304 to Warren in the answer (Paper No. 14, see page 5)
to support his position, he has not included this patent in
the statement of the rejection on appeal. Where a reference
is relied on to support a rejection, whether or not in a minor
capacity, there is no excuse for not positively including the
reference in the statement of the rejection. In re Hoch, 428
F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).
Accordingly, we have not considered the teachings of Warren in
reviewing the merits of the examiner's rejection.
3
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