Appeal No. 2000-1327
Application No. 08/402,624
file history of the present application will reveal that we
remanded this application to the examiner on several occasions to
clarify the record as to whether the belatedly filed Johnson II
declaration has been entered and considered. Based on the
examiner’s responses to our remands, we consider that the Johnson
II declaration has been considered by the examiner.1
We have given careful consideration to appellant’s invention
as described in the specification, to the appealed claims, to the
prior art applied by the examiner, to the evidence of
nonobviousness provided by appellant, and to the above noted
positions advanced by appellant in the brief and by the examiner
in the answer. These considerations have led us to reassess our
position and now conclude that the applied reference evidence
does not establish a prima facie case of obviousness of the
claimed subject matter. Accordingly, we shall not sustain the
above-noted rejections under 35 U.S.C. § 103. Our reasons
follow.
1The examiner’s difficulty in comprehending that Johnson I
and Johnson II are separate and distinct declarations may have
been alleviated, at least to some extent, by appellant clearly
and expressly stating in the appeal brief that Johnson II was a
new declaration and not merely a copy of Johnson I, and by
explaining how Johnson II differed from Johnson I.
4
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