Appeal No. 94-0105
Application 07/854,124
combinations of references may also be appropriate. In view
of the many unresolved issues in this application, and the
likelihood that some issues may be resolved by declarations
under 37 CFR §§ 1.131 or 1.132, we decline to exercise our
authority under 37 CFR § 1.196(b) to set forth new grounds of
rejection.
Finally, while appellant, in rebuttal, must offer
probative evidence in support of his arguments, In re Pearson,
494 F.2d 1399, 181 USPQ 641, 646, even if submitted in a
declaration, In re Grunwell, 609 F.2d 486, 491, 203 USPQ 1055,
1059 (CCPA 1979), citing In re Payne, 606 F.2d 303, 315, 203
USPQ 245, 246 (CCPA 1979) (mere argument in a declaration is
insufficient as evidence), we emphasize that the examiner’s
patentability determination must take into account any
argument or evidence of nonobviousness the appellant may
proffer concerning the above discussed issues.
SUMMARY
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