Appeal No. 96-2142
Application 08/284,388
The references applied in the final rejection are:
Theurer et al. (Theurer '753) 4,399,753 Aug. 23, 1983
Theurer (Theurer '767) 5,113,767 May 19, 1992
Claims 1, 7 to 9 and 11 stand finally rejected under 35 USC
§ 103 as unpatentable over Theurer '767 in view of Theurer '753.
The basis of the rejection is stated on page 3 of the
examiner's answer, and need not be repeated here.
Appellants do not contend that the combination of Theurer
'767 and '753, as postulated by the examiner, would not meet all
the limitations of claim 1. However, they argue that Theurer
'753 is nonanalogous art, and therefore not properly combinable
as a secondary reference, because it is not pertinent to the
problem with which appellants were involved, viz., "the problem
of preventing vibration to be [sic: being] transmitted from a
track stabilization assembly to a lining drive" (brief, page 6).
In support of this argument, they cite Oscar Mayer Foods Corp. v.
ConAgra Inc., 35 USPQ2d 1278, 1281 (Fed. Cir. 1994), but the
citation of this decision is considered improper since, as noted
at page 1278 of the USPQ report, the Court indicated that the
Oscar Mayer decision was not citable as precedent. See Shaked v.
Taniguchi, 21 USPQ2d 1291, 1292 (1991) wherein the Commissioner
stated (original emphasis:)
2
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