Appeal No. 96-3355
Application 08/004,024
twisted after being inserted into the openings of the loading
strip.
In the answer, the examiner may have recognized the
futility of his previous position because he presents a new
fallback position for unpatentability. Specifically, the
examiner relies on the fact that Regalbuto’s use of four tabs in
each strip opening permits the elimination of the threaded type
outer surface on the charge case used in the prior art [column 5,
lines 35-39]. The examiner concludes that this reference to
threads on the prior art charge case suggests that the charge
case was inserted and then twisted in the claimed manner. There
is no evidence on this record that the examiner ever actually
considered the application cited in Regalbuto as prior art.
The Regalbuto patent relied on by the examiner makes
reference to an earlier application identified as Serial Number
651,201 filed on September 17, 1984. This application issued as
U. S. Patent Number 4,655,138 ('138) (a copy of which is
attached). This patent shows the threaded charge case which is
referred to in the applied Regalbuto patent. A careful review of
the ’138 patent reveals no twisting of the charge case due to the
presence of the threads. The two tabs of the charge opening are
simply bent back when the charge case is inserted and the tabs
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