Appeal No. 97-0032
Application No. 08/095,295
of equivalence under 35 U.S.C. § 112, sixth paragraph. However,
regarding the positions expressed by my colleagues, I share Judge
Nase's view, expressed infra, that it is unwarranted and unwise
at this juncture in the prosecution of the present application to
sua sponte raise for the first time the issue of whether the
pivot means of Warren is equivalent to the structure of the pivot
means disclosed in appellants' specification, given that neither
the examiner nor appellants have raised such an issue in the
appeal. At the very least, it would seem that fundamental
fairness would dictate that the application be remanded to the
examiner to consider the issue of equivalence, with the
appellants then having an opportunity to contest the examiner's
determination and a right to again appeal from any such rejection
of claim 33.
)
)
) BOARD OF PATENT
) APPEALS
CHARLES E. FRANKFORT ) AND
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