Appeal No. 96-0811
Application No. 08/023,955
references. Appellants’ response to this order was filed on
August 6, 1998 (see Paper No. 24).
Contrary to the examiner’s statement in the paper mailed
September 11, 1998 (Paper No. 25), appellants did not concede
in their response to our order that the Bigg’s and Winn-Dixie
publications constituted prior art. Instead, appellants stated
in that response that the publications were discovered after
the application was filed and that they had no knowledge that
the publications pre-dated the filing date of the application.
Accordingly, it has not been established that the Bigg’s and
Winn-Dixie publications constitute prior art. We must
therefore reverse the rejections of claims 1 through 10 and 15
through 17.
We are not unmindful of appellants’ request in Paper No.
24 to provisionally treat the Bigg’s and Winn-Dixie
publications as prior art subject to the conditions set forth
in Paper No. 24. To decide the patentability issue on such a
basis would be tantamount to an advisory opinion. However, we
have no authority under the statute (Title 35) or the code of
federal regulations (Title 37) to render advisory opinions on
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