Appeal No. 98-1604
Application 08/354,539
from further consideration under the provisions of 37 CFR
§ 1.142(b) as be directed to a nonelected invention.
We REVERSE.
The appellant's invention pertains to an internal combustion
engine. Independent claim 16 is further illustrative of the
appealed subject matter and a copy thereof may be found in the
appendix to the appellant's brief.3
The references relied on by the examiner are:
Ascari 5,095,858 Mar. 17, 1992
Yamada 5,099,812 Mar. 31, 1992
Toyoichi et al. 61190147 Aug. 23, 1986
(Japanese abstract)4
3Although correct in the copy of claim 16 as it appears in
the appendix to the brief, we observe that in the penultimate
line of claim 16 (as it appears in the amendment filed March 31,
1997 (Paper No. 10)) "porting" should be --point--. At oral
hearing, the appellant's counsel stated that in line 12 of claim
16 (as it appears in the appendix to the appellant's brief)
"second plane" should be --first plane--. These obvious errors
should be corrected.
4The examiner failed to include this reference in the
listing of prior art in the answer. In the rejection of claim
26, wherein this reference is relied on, the examiner simply
refers to it as "Japanese Patent publication no. JP 61190147 to
Toyoichi et al." (as though it were the complete document). We
observe, however, no Japanese document in its entirety has ever
been made of record. The only "Toyoichi" of record is the
abstract of this document, which was cited in the European search
report submitted by the appellant in the information disclosure
statement filed on August 11, 1995 (Paper No. 2). Accordingly,
we presume the examiner intended to rely on this abstract.
2
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