Ex parte GALLAGHER et al. - Page 3

          Appeal No. 96-1706                                                            
          Application 08/203,461                                                        

                    g)   based on said counts of signal pulses in said                  
          first and second counters and the sensor indicated tape                       
          condition, the micro controller determining the timing of control             
          signals of controlling the motor in correspondence to the length              
          of printing on the tape.                                                      

                    The examiner relies on the following references:                    
          Hubbard                        3,869,986            Mar. 11, 1975             
          Schwartz                       4,168,533            Sep. 18, 1979             
          Storace et al. (Storace)       4,831,554            May  16, 1989             

                    Claims 1 through 3, 5, 6, 8 and 9 stand rejected under              
          35 U.S.C. 103 as unpatentable over known postage meters in view               
          of Schwartz "and a substitution of equivalent devices" [answer,               
          page 3].                                                                      
                    Reference is made to the brief and answer for the                   
          respective positions of appellants and the examiner.                          
                    We reverse.                                                         
                    At the outset, we note that the examiner's reliance on              
          references (Hubbard and Storace), to whatever extent relied on,               
          wherein the references form no part of the statement of                       
          rejection, is clearly improper.  In re Hoch, 428 F.2d 1341, 1342              
          n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).  Accordingly, we place no             
          reliance on the Hubbard and Storace references.                               


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