Appeal No. 96-0879
Application 08/101,228
said probe having a tip means for transmitting, receiving and
focusing the radio frequency current at the region of the
tissue such that the tissue being contacted is instantaneously
vaporized, cut and/or cauterized.
The items relied upon by the examiner as evidence of
obviousness are:2
Yamanashi et al. (Yamanashi) 5,019,076 May
28, 1991
The statement relating to Yamanashi appearing on page 10 in
the appellants’ specification.
Claims 1 through 13 stand rejected under 35 U.S.C. § 103
as being unpatentable over Yamanashi in view of the statement
appearing on page 10 in the appellants’ specification.
2In both the final rejection (Paper No. 5) and answer
(Paper No. 10), the examiner relies on U.S. Patent No.
3,963,030 to Newton and U.S. Patent No. 4,092,986 to
Schneiderman to support his position on appeal. Neither of
these patents, however, is included in the statement of the
appealed rejection. Where a reference is relied on to support
a rejection, whether or not in a minor capacity, there is no
excuse for not positively including the reference in the
statement of the rejection. In re Hoch, 428 F.2d 1341, 1342
n.3, 166 USPQ 406, 407 n.3 (CCPA 1970). Accordingly, we have
not considered the teachings of Newton and Schneiderman in
reviewing the merits of the appealed rejection.
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