Appeal No. 2002-0467
Application No. 08/824,153
(Brief, page 2). A copy of illustrative independent claim 31 is
attached as an Appendix to this decision.
The examiner has relied upon the following references as
evidence of unpatentability:
Chen et al. (Chen) 5,107,059 Apr. 21, 19921
Schucker 5,430,224 Jul. 4, 1995
The claims on appeal stand rejected under 35 U.S.C. § 102(b)
as anticipated by or, in the alternative, under 35 U.S.C. § 103(a)
as unpatentable over Schucker (Answer, renumbered page 4). We
reverse the rejections on appeal essentially for the reasons stated
in the Brief, Reply Brief, Reply to Examiner’s Communication, and
for the reasons set forth below.
1We note that Chen has been listed as prior art of record
“relied upon in the rejection of the claims under appeal”
(Answer, ¶(9) on incorrectly numbered page 2, now renumbered as
page 3). However, the examiner has not included Chen in the
statement of the rejection (Answer, ¶(10), renumbered page 4)
although discussing Chen on renumbered page 8 of the Answer
(originally page 6). See In re Hoch, 428 F.2d 1341, 1342 n.3,
166 USPQ 406, 407 n.3 (CCPA 1970)(whether a reference is used in
a major or minor role, there is no excuse for not positively
including a prior art reference in the statement of the
rejection). Furthermore, as correctly argued by appellant,
Hotler, British Patent 2190398 A, has been inexplicably listed as
“Prior Art of Record” (Answer, ¶(9)) but never discussed by the
examiner in the Answer (see the Reply Brief, page 1; the
examiner’s Letter dated June 22, 2000, Paper No. 15; and the
Reply to Examiner Communication dated Aug. 25, 2000, Paper No.
16, page 1). Accordingly, we do not consider either Chen or
Hotler as part of the examiner’s evidence in support of the
rejection.
2
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