Appeal No. 2002-0986 Page 5
Application No. 09/222,282
driving a dispensing roller 17 and a worm gear 23 mounted to the armature shaft of a
dc-motor 24. To actuate the dispenser, the user presses a button to close a switch 25
to operate the motor 24 to rotate the drive roller 17, the length of paper sheet dispensed
depending on the duration of the period during which the switch 25 is kept in the closed
state. According to the examiner, it would have been obvious to one of ordinary skill in
the art to provide the Bailey apparatus with a worm gear and worm shaft to eliminate
the need to manually drive the shaft 44 of Bailey which indexes the circular knife
because it is well known in the art to provide a worm gear and worm shaft mechanism
to generate rotary motion.
Appellants argue on page 3 of their supplemental brief, inter alia, that (1) the
contents of a patent application pending at the time an invention is made are not
available as prior art for 35 U.S.C. § 103 purposes and, similarly, that the contents of an
issued patent are not available for the purpose of the making of a 35 U.S.C. § 103
rejection as of the filing date of the patent application from which the patent issued and
(2) Kanbar provides no “direction and motivation” to provide a worm and worm gear
“for the purposes that they are employed in the instant invention to achieve the ends
achieved by this invention.”
Appellants’ first argument is apparently directed to the fact that both the Bailey
and Kanbar patents issued from applications which were filed prior to the effective filing
date of the instant application (January 5, 1998, the filing date of the provisional
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