Appeal No. 95-3828
Application 07/868,037
Krummheuer et al. (Krummheuer II) 5,131,434 Jul.
21, 1992
(filed Sep. 9,
1991)
Claims 16-25 are rejected under 35 U.S.C. § 112, second
paragraph, as being indefinite for failing to particularly
point out and distinctly claim the subject matter which
appellants regard as the invention (answer, page 3). Claims
16-25 are rejected under 35 U.S.C. § 103 as unpatentable over
Krummheuer I in view of Krummheuer II and Belitsin (id.). We2
reverse both stated rejections for reasons which follow.3
OPINION
A. The Rejection Under 35 U.S.C. § 112, Second Paragraph
The examiner finds that the claimed phrase “modified
2 As appellants note on pages 4 and 5 of the brief, Krummheuer II is apparently
being relied upon as a secondary reference. This reference was inadvertently omitted by
the examiner in the statement of the rejection in the final rejection (page 2 of Paper
No. 6) but was discussed on page 4 of the final rejection. Furthermore, the examiner
incorporated the “reasons of record in Paper No. 4, paragraph 18" in the final rejection
(page 2 of Paper No. 6). The office action of Paper No. 4 expressly states that
Krummheuer II is applied as a secondary reference (paragraph 18, page 5). As surmised
by appellants and correctly stated by the examiner in the answer, the rejection
currently before us under § 103 is Krummheuer I in view of Krummheuer II and Belitsin.
3 The new ground of rejection contained in the examiner’s answer (page 5) has
been withdrawn by the examiner in view of appellants’ amendment dated Sept. 19, 1994
submitted with the reply brief (Paper No. 15). See the Supplemental Answer dated Dec.
7, 1994 (Paper No. 16).
3
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