Ex Parte PLASSE - Page 5




              Appeal No. 94-2477                                                                                       
              Application 07/893,554                                                                                   



                     Rather than spend the resources of the Board to determine whether the                             
              examiner’s rejection under 35 U.S.C.  103 is properly supported by the two abstracts,                   
              we have considered the full text articles.  As a result, we find that the Vaupel article is              
              significantly less relevant prior art in determing the patentability of the claimed subject              
              matter, than Noyes and other prior art contained in this record.  Furthermore, the                       
              statement of the rejection appearing at page 3-4 of the Examiner’s Answer is not a                       
              model of clarity.  The examiner first states that the two abstracts are used in                          
              combination, yet the subsequent explanation of the rejection does not explain how the                    
              examiner proposes to combine the two disclosures.  In view of the confusion                              
              surrounding exactly what information the examiner is relying upon in making the                          
              rejection, the confusing nature of the statement of the rejection, as well as our                        
              discovery of more relevant prior art in this record, we reverse the examiner’s rejection                 
              and institute the following new grounds of rejection under 37 CFR  1.196(b).                            
                                             New Grounds of Rejection                                                  
                     Under the provisions of 37 CFR  1.196(b), we make the following new grounds                      
              of rejection.                                                                                            
                     Claims 1, 2, 4 through 6, 8 through 10 and 12 are rejected under 35 U.S.C.                        






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