Appeal No. 1999-2290 Page 8
Application No. 08/763,955
replace the added second hands with discs having hands
thereon. The examiner
points out in the remarks (id.), that the use of discs having
hands thereon is shown by the Musy reference of record.
We note at the outset that the Musy reference is not
referred to in the statement of the rejection, and has not
been argued by appellant in the brief. "Where a reference is
relied on to support a rejection, whether or not in a 'minor
capacity,' there would appear to be no excuse for not
positively including the reference in the statement of
rejection." In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ
406, 407 n.3 (CCPA 1970). Here, although the examiner refers
to Musy in the remarks, the examiner fails to include the
reference in the rejection of the claims. Accordingly, the
Musy reference will not be considered in deciding this appeal
since the reference was not included in the rejection of the
claims, and has not been argued in the brief by appellant.
See also Ex parte Raske, 28 USPQ2d 1304, 1305 (Bd. Pat. App. &
Int. 1993).
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