Appeal No. 2001-1803
Application No. 09/087,775
Turning to claim 29, appellant discussed in his briefo the rejections of that claim in
the section “Issue F” (pages 20 and 21). With regard to the rejection on Borichevsky
alone, appellant argued only that (brief, page 20):
As discussed above in regard to Issue C, the Borichevsky reference does
not describe stacking, nor does it suggest stacking. Borichevsky shows
only an ornamental design of an ottoman. No stack is shown. Thus,
Borichevsky alone is insufficient to establish obviousness of the stacking
method recited in claim 29.
The official notice taken by the examiner was not mentioned. Moreover, in his reply brief,
where appellant for the first time discussed the official notice in connection with Issue E
(claim 28), he did not do so as to Issue F, but rather said (page 5): “Appellant has no
further comments on Issue F besides those already set forth in the Brief on Appeal filed
May 1, 2000.” Accordingly, since appellant has presented no reasons as to why he
believes the rejection of claim 29 as unpatentable over Borichevsky in view of the official
notice taken by the examiner to be incorrect, the rejection will be sustained.
Pursuant to the above, rejection (3)(n) will not be sustained as to claim 28, but will
be sustained as to claim 29.
Conclusion
The examiner’s decision to reject:
(i) Claim 28 under 35 U.S.C. § 112, second paragraph is reversed;
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