Ex parte MARC STAMMER - Page 5




          Appeal No. 95-2175                                                          
          Application 08/100,332                                                      

          Hoek discloses a wave guide cable with alternating portions of              
          waterblocking and non-waterblocking materials.                              
                    Saito discloses a light waveguide cable with an outer             
          jacket 10, and an inner core 2 with grooves 4 therein.                      
          Waveguides 5 are placed in grooves 4.  As shown in Figure 3,                
          waterblocking material 6 is placed in grooves 4 and on waveguides           
          5 at spaced intervals.  Therefore, Saito teaches a waveguide                
          cable with alternate waterblocking and non-waterblocking                    
          portions.                                                                   
                    Furthermore, appellant admits that the prior art                  
          teaches cables that are waterblocked at periodic intervals.                 
          Brief at page 4. In view of these references and appellant’s                
          statement in the Brief, it is our view that the evidence                    
          establishes that van der Hoek and Saito anticipate appellant’s              
          claim 1.  We further note that the predecessor of our reviewing             
          court sanctioned the practice of nominally basing a rejection on            
           103 when, in fact, the actual ground of rejection was that the            
          claims were anticipated by the prior art.  The justification for            
          this is that lack of novelty in the claimed subject matter, e.g.,           
          as evidenced by a complete disclosure in the prior art, is the              
          ultimate or epitome of obviousness.  In re Fracalossi, 681 F.2d             



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