Appeal No. 97-0032
Application No. 08/095,295
any claim containing such a means clause provides proper due
process and provides the overall fairness that our patent system
must maintain. Thus, for this panel of the Board to sua sponte
raise and decide the issue of whether the structure of the pivot
means of Warren is equivalent to the structure of the pivot means
disclosed in appellants’ specification, in my opinion, is
fundamentally unfair to both the appellants and the examiner
since their respective positions on this issue are not before us.
For the reasons stated above, I would sustain the examiner's
rejection of claim 33 based on 35 U.S.C. § 103 as being
unpatentable over Warren in view of Worrall, Connell and Touzani.
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) BOARD OF PATENT
) APPEALS
JEFFREY V. NASE ) AND
Administrative Patent Judge ) INTERFERENCES
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