Appeal No. 95-3959
Application 08/051,492
known practice of feeding (or force-feeding) young or traumatized animals” at page 6 of
the Examiner’s Answer. Then the examiner stated at page 7 of the Examiner’s Answer:
If applicant wishes, several reference volumes of Veterinary Medicine will
be cited during appeal . . . . As evidence, the commercial availability of
several nutritional supplements is noted (available at any health food
store), wherein administration is via dropper. Commercially available
forms of these supplements will also be referenced at appeal.
Suffice it to say that the time for the appeal in this application has come and this
appeal proceeding is almost gone, yet neither appellant nor this merits panel has the
benefit of the evidence long promised by the examiner. It is not apparent at what point
in time the examiner intends to make the promised evidence of record. We believe that
the appropriate time has long since passed.
As is apparent, the rejection under 35 U.S.C. § 103 is not reviewable absent the
promised factual evidence in support of the examiner’s assertions. Accordingly, we
vacate the rejection under 35 U.S.C. § 103 and remand the application for the examiner
to make of record the evidence the examiner has repeatedly stated is available to him.
In so doing, the examiner should reopen prosecution and issue an appropriate office
action which provides appellant a full and fair opportunity to respond.
7
Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: November 3, 2007