Appeal No. 97-0032
Application No. 08/095,295
Appellants' arguments concerning the combination of four
references in the rejection (brief, p. 8) and the use of Touzani
(brief, pp. 8-13) are not persuasive with respect to claim 33
since only the references to Warren and Worrall are necessary to
render claim 33 unpatentable under 35 U.S.C. § 103. The examiner
has apparently relied upon Connell to show or teach a flap
closing the top opening of a compartment and Touzani for bistable
pleats, features not present in claim 33.
In regard to Vice Chief Administrative Patent Judge
Schafer's opinion with respect to claim 33 and the position that
this panel of the Board of Patent Appeals and Interferences
(Board) should sua sponte raise the issue on appeal of whether
the structure of the pivot means of Warren is equivalent to the
structure of the pivot means disclosed in appellants’
specification, I consider such action to be unwarranted and
unwise at this juncture in the prosecution of the present
application. In the first place 37 CFR § 1.192 would appear to
dictate against our raising and considering such an issue since
it was not raised by the appellants as a point of contention in
this appeal. Specifically, 37 CFR § 1.192(a) states that
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