Appeal No. 1999-2329
Application 08/642,278
tubing.
Rejection (3) will therefore be sustained.
Rejection (1)
As the examiner notes at page 4 of the answer, appellants
present no argument in the brief against the rejection of
claims 1 and 6 to 9 under § 102(e) as anticipated by Fanselow.
Appellants do not disagree, but assert on page 2 of their
reply brief that their argument against the § 103 rejection of
claim 1 is a “broader argument,” such that “if claim 1 is not
obvious in view of Fanselow et al. (alone or in combination
with other references), as argued, than it cannot, by
definition, be anticipated by Fanselow et al.”
The converse of this assertion, namely, that if claim 1
is obvious in view of Fanselow under § 103 then it is
anticipated by Fanselow under § 102, does not necessarily
follow. However, since we have held above that claim 1 is
obvious over Fairchild in view of Fanselow, and appellants
have presented no other arguments as to why claim 1 is not
anticipated by Fanselow, rejection (1) will be affirmed, both
with respect to claim 1 and with respect to claims 6 to 9,
6
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