Appeal No. 94-3631
Application 07/883,513
We have carefully considered the subject matter on appeal, the rejections advanced by the
examiner and the evidence of obviousness and anticipation relied upon by the examiner as support
for the rejections. We have, likewise, reviewed and taken into consideration, in reaching our
decision, the appellants' arguments set forth in the briefs along with the examiner's rationale in
support of the rejections and arguments in rebuttal set forth in the examiner's answer.
It is our view, after consideration of the record before us, that the collective evidence relied
upon and the level of skill in the particular art would not have suggested to one of ordinary skill in
the art the obviousness of the invention as set forth in claims 1-15. We are also of the view that
the disclosure of Concannon does not anticipate the invention of claims 22-33. Accordingly, we
reverse.
At the outset, we note that appellants attempted to amend the specification of this
application after final rejection to indicate that this application was a continuation-in-part
application of an application by Copenhaver et al. (Copenhaver) which matured into U. S. Patent
No. 5,146,362. The Copenhaver patent has essentially the exact same disclosure as the
Concannon reference patent and has the exact same U. S. filing date. According to appellants, the
amendment of this application to make it a continuation-in-part of the Copenhaver application
would have removed Concannon as a valid reference against the invention of this application.
The examiner refused to permit entry of this amendment [Advisory Actions, Paper Nos. 10 and
12]. Appellants have asked us in their brief to reconsider the facts of this case and to treat this
application as a continuation-in-part application of Copenhaver, which would render the art
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