Appeal No. 97-3246
Application 08/384,090
The examiner states that no patentable weight was given
to the
anodic bonding process because applicant [sic,
applicants’] admitted prior art EP-581,376 in column
2, lines 1-10 clearly discloses that bonding also
includes anodic or fusion bonding [Final Rejection-
page 5].
This reasoning is not understood. The European patent cited
by the examiner forms no part of the statement of the
rejection. The rejection is one of anticipation under 35
U.S.C. § 102(b) over Iwama. EP-581,376 is not before us and
may not be used,
in any manner, as evidence to reject the claims since this
reference forms no part of the rejection before us. See In re
Hoch, 428 F.2d 1341, 166 USPQ 406 (CCPA 1970). If the
examiner is attempting to use this reference’s teaching as
evidence that it would have been obvious to employ anodic
bonding in Iwama, an obviousness rejection under 35 U.S.C. §
103 should have been made. The only rejection before us,
regarding claims 11 through 13, 15 and 16 is one of
anticipation under 35 U.S.C. § 102(b) over Iwama and that is
all that we consider in this regard.
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