Appeal No. 97-1473
Application 08/492,376
would have symbols (e.g., numbers) on those faces and such
numbers/symbols would be viewable from the top surface (22)
and from the base side of the lottery number picker. Given
this teaching in Stebing, we find the examiner's use of the
Albright patent to be mere surplusage and sustain the § 103
rejection of claims 8 and 9 on the basis of Stebing alone. As
has been made clear by our reviewing Courts on numerous
occasions, anticipation or lack of novelty is the ultimate or
epitome of obviousness. See, in this regard, In re Fracalossi,
681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA 1982); In re
Pearson, 494 F.2d 1399, 1402, 181 USPQ 641 (CCPA 1974).
Under the provisions of 37 CFR § 1.196(b), we enter the
following new ground of rejection against claims 1 through 7
on appeal.
Claims 1 through 7 are rejected under the judicially
created doctrine of obviousness-type double patenting as being
unpatentable over claims 1 through 4, 11, 13 and 15 of U.S.
Patent No. 5,454,567 in view Stebing. The compact case of the
enumerated claims in the '567 patent is the same as that set
forth in claims 1 through 7 on appeal, with the exception that
8
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