Appeal No. 2002-1734
Application 09/399,066
Hansen meeting the wherein clause “wherein the removing step
searches for copies of the message content.”
Because we do not sustain the rejection of any of
independent claims 50, 51, 52, 68, 69 and 70 on appeal, we also
do not sustain the rejection of their respective dependent claims
whether they are rejected under 35 U.S.C. § 102 or 35 U.S.C.
§ 103.
The examiner’s reliance upon a patent to Tseung and
Anand in conjunction with the separate rejections of dependent
claims 53 and 56 under 35 U.S.C. § 103 at pages 8 and 9 of the
Answer is highly disfavored. The approach appears to us to
effectively bootstrap separately appliable references when they
have not been formally relied upon in the final rejection and in
the statement of the rejection in the Answer. Therefore, they
have not been considered by us. Likewise, we have not considered
the Berkowitz reference noted in the Answer and Briefs since
there is no formal statement of a rejection before us based on
this reference.
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