Appeal No. 2001-0552
Application No. 09/277,412
Appellant’s invention “is directed towards beds for pickup trucks and particularly
toward a rear door attachable to the existing tailgate that converts a six foot bed into an
eight foot bed” (specification, page 1). A copy of claim 1, the broader of the two
independent claims pending in the application, is found in the “Appendix” section of
appellant’s brief.
The sole reference relied upon in support of the rejection maintained in the answer
is:
Habdas 5,741,039 Apr. 21, 1998
(filed Mar. 10, 1997)
Claim 1 stands rejected under 35 U.S.C. § 102(e) as being anticipated by Habdas.
Preliminary Matters
The final rejection also included a rejection of claims 3 and 5 as being anticipated
by Habdas, a rejection of claim 6 as being unpatentable over Habdas in view of Hitchcock,
and a rejection of claims 7 and 8 as being unpatentable over Habdas in view of Bianchi.
These rejections have not been restated in the examiner’s answer. As such, we presume
they have been withdrawn by the examiner and are no longer before us for review. See Ex
parte Emm, 118 USPQ 180, 181 (Bd. App. 1957). It follows that our decision in this
appeal will be limited to the above noted § 102 rejection of claim 1.
It appears that the examiner may have been under the impression that because
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