Appeal No. 97-0593
Application 08/365,906
must refuse to sustain the examiner's rejections of claims 1
through 5, 7, 8 and 10 through 16 under 35 U.S.C. § 103.
We note the examiner's citation in the answer
(Pages 7-8) of several prior art patents which purportedly show
recesses or depressions in cutting inserts wherein the recesses
have linear opposing side edges oriented as in appellant’s
cutting insert, and the examiner's assertions that such recesses
are "extremely well known in the chip breaker art and are used
successfully in many different cutting inserts." However, these
patents have not been set forth in the statement of any of the
§ 103 rejections before us on appeal and therefore form no part
of the rejections at issue that are before us for review. As
pointed out by the Court in In re Hoch, 428 F.2d 1341, 1342 n.3,
166 USPQ 406, 407 n.3 (CCPA 1970), where a reference is relied
upon to support a rejection, whether or not in a minor capacity,
there would appear to be no excuse for not positively including
the reference in the statement of the rejection. However, in
passing, we observe that, like the recesses in Warren, the
recesses in both Lundgren (e.g., 19 of Fig. 6) and van Barneveld
are located in an inclined wall of the cutting insert closely
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