Appeal No. 97-2461
Application 29/020,294
Further, tubular sleeves are known in the prior art.
The prior art reference to Upham patented June 21, 1881
clearly shows that tubular sleeves are old in the prior
art.
We express no view as to whether Upham constitutes a Rosen
reference or whether it in combination with any other reference
would have rendered obvious the appellant's design. There simply
is no occasion to consider Upham in this appeal. The rejection
is one based on Carter alone. Note that all references on which
the examiner relies should be positively recited in the
rejection. In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406,
407 n.3 (CCPA 1970); Ex parte Movva, 31 USPQ2d 1027, 1028 n.1
(Bd. Pat. App. & Int. 1993); Ex parte Hiyamazu, 10 USPQ2d 1393,
1394 (Bd. Pat. App. & Int. 1988). Since Upham has not been
recited in the basis of the obviousness rejection, it will not be
treated as such.
For the foregoing reasons, the rejection of the sole design
claim under 35 U.S.C. § 103 as being unpatentable over Carter
cannot be sustained.
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