Appeal No. 96-0661
Application 08/189,833
to support such contentions.
We note the examiner's citation in the supplemental
answer (Paper No. 16, page 2) of several prior art patents
which purportedly show features the examiner had previously
taken "judicial notice" of, however, the examiner has not
added any of these references to the rejection before us on
appeal. Given that these patents have not been set forth in
the statement of the § 103 rejection presently before us, or
in any other rejection made by the examiner, they form no part
of the issues presented for review by this panel of the Board.
As pointed out by the Court in In re Hoch,428 F.2d 1341,
1342,166 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.
Since the subject matter of claims 4 and 8 through 18 on
12
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