Appeal No. 2001-0724
Application No. 09/251,602
Miller et al. (Miller) 4,947,893 Aug. 14, 1990
Hawsey et al. (Hawsey) 4,996,457 Feb. 26, 1991
Claims 1, 2, 4, 8, and 9 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Shiraki and Miller.
Claims 3, 5, and 7 stand rejected under 35 U.S.C. § 103 as being unpatentable
over Shiraki, Miller, and Kawahira.
Claim 6 stands rejected under 35 U.S.C. § 103 as being unpatentable over
Shiraki, Miller, and Hawsey.
Claims 10-17 have been withdrawn from consideration.
We refer to the Final Rejection (mailed Nov. 4, 1999) and the Examiner's Answer
(mailed Jun. 14, 2000) for a statement of the examiner's position and to the Brief (filed
May 2, 2000) for appellant’s position with respect to the claims which stand rejected.
OPINION
In response to the section 103 rejection of claims 1, 2, 4, 8, and 9 as being
unpatentable over Shiraki and Miller, appellant asserts (Brief at 3) that the examiner
proposes to combine the teachings of “non-relevant art with those of relevant art.” We
understand appellant’s position to be that Miller is not analogous prior art. Whether a
reference in the prior art is "analogous" is a fact question. In re Clay, 966 F.2d 656,
658, 23 USPQ2d 1058, 1060 (Fed. Cir. 1992). Appellant’s argument thus contests the
underlying, implicit finding that Miller is analogous art.
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