Appeal No. 97-2116
Application 07/789,802
(a) claims 1, 3, 5, 6 and 8, rejected under 35 U.S.C. §
102(b), as being anticipated by Roales;
(b) claims 7 and 9, rejected under 35 U.S.C. § 103, as
being unpatentable over Roales in view of Conklin;
(c) claims 1, 3, 5 and 8, rejected under 35 U.S.C. § 103,
as being unpatentable over Cvacho ‘423 in view of Hoffman, and
further in view of Cvacho ‘927 and Nixon;
The patents to Cvacho et al [‘927] and Nixon et al are to be
additionally considered part of the rejections, supra, under 35
U.S.C. § 103 where Cvacho [‘423] has been applied . . . .
Appellant alleges [that] the thin inner container of Cvacho [’423]
is made of paper or plastic and would collapse if squeezed by a
shrunk sleeve. . . . To the degree appellant has continued to
argue this issue, Cvacho et al [‘927] and Nixon et al are to be
considered additionally applied to the 35 U.S.C. § 103 rejections
involving Cvacho [‘423] as evidence that the inner sleeve in
Cvacho [‘423] does indeed
have structural strength for the modifications provided in the
rejections to provide a shrink wrap.
In that Cvacho [‘927] and Nixon were never mentioned in the statement of
the rejection of any of the claims prior to the examiner’s answer, it is
apparent that the inclusion of these references at this point constitutes new
grounds of rejection, notwithstanding the examiner’s views to the contrary
and/or appellant’s acquiescence on this point. In any event, in the interest
of rendering a complete decision on the issues raised in the appeal, we shall
consider Cvacho ‘927 and Nixon as part of the evidentiary basis in the
rejections where Cvacho ‘423 has been applied.
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