Appeal No. 95-2718
Application 07/914,852
or suggestion in Moser that the metallic oxide precursor is a
metal-peroxy acid ester, as claimed. Since, as pointed out by
appellants, claims 6-10 are all ultimately dependent upon
claim 5, the § 103 rejection of claims 6-10 cannot be
sustained. Likewise, claims 12, 19 and 20, which also define
the metallic oxide precursor as a metal-peroxy acid ester, are
indicated as free of the prior art. In addition, the examiner
has indicated in the Supplemental Answer that claims 28 and 31
are free of the art. Since claims 29 and 30 ultimately depend
on claim 28, they, likewise, are free of the art.
We note that there is a discrepancy in the examiner’s
treatment of appealed claim 21. Page 3 of the Answer states
that claim 21 would be allowable if rewritten to overcome the
§ 112 rejection, whereas page 4 of the Answer states that
appealed claim 21 stands rejected under § 103. Since we find
that Moser discloses a metallic oxide precursor that yields an
electrically conductive metal oxide, we will sustain the § 103
rejection of claim 21 and claims 23-25 dependent thereon, as
well as claims 26 and 27.
In conclusion, based on the foregoing, the examiner’s
rejection of claims 1-31 under 35 U.S.C. § 112, second
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