Appeal 2006-2985
Application 10/702,225
to position portions of these converted strips of dunnage in juxtaposition and
connects the juxtaposed portions to hold them together. Fuss inherently discloses
the use of a stapler as one means to connect the portions of the dunnage. As such,
we find that Fuss anticipates the invention of claim 1.
CONCLUSIONS OF LAW
We conclude that the Examiner did not err in rejecting claim 1 under 35
USC § 102(b) as being anticipated by Fuss. Inasmuch as our finding of
anticipation is based on new facts and reasoning not found by the Examiner, we
make this finding a new ground of rejection under 37 CFR § 41.50(b).
The Appellants did not separately argue the patentability of dependent
claims 3 and 5-7. Rather, the Appellants relied on the arguments for patentability
of claim 1. As such, we also sustain the Examiner’s rejection of these claims.
Because we find no deficiencies in Fuss for the reasons set forth supra, we
also sustain the Examiner’s rejection of claims 4, 8, 9, and 23 under 35 USC
§ 103(a).
DECISION
The decision of the Examiner to reject claims 1, 3-9, and 23 is affirmed and
the Board’s findings are entered as a new ground of rejection.
This decision contains a new ground of rejection pursuant to 37 C.F.R.
§ 41.50(b). 37 C.F.R. § 41.50(b) provides, "[a] new ground of rejection pursuant
to this paragraph shall not be considered final for judicial review." 37 C.F.R.
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