Appeal No. 96-2304 Page 3
Application No. 08/136,252
Claims 17 through 25 stand rejected under 35 U.S.C. 102(e)2
as anticipated by Chen while claims 26 through 31 stand
rejected under 35 U.S.C. 103 as unpatentable over Chen.
Reference is made to the brief and answer for the
respective positions of appellants and the examiner.3
OPINION
We reverse.
While the reference to Chen is clearly very relevant to the
instant claimed invention and the examiner does make some good
points in arguing the rejection, we will, nevertheless, reverse
2The examiner indicates in the answer that the ground of
rejection is under 35 U.S.C. 102(b) but, clearly, because of
the reference date vis a vis the application filing date, the
rejection should be under 35 U.S.C. 102(e) as originally
indicated by the examiner in the final rejection.
3We have not considered the reply brief, filed
concurrently with the request for oral hearing, March 13,
1996, because there is no indication in the file that the
examiner has entered the reply brief. Indeed, there is no
indication that the examiner has ever seen the reply brief,
probably due to a glitch caused by appellants’ attaching the
reply brief to the request for oral hearing rather than filing
two separate papers. In any event, we would normally remand
the case to the examiner for a decision on entry of the reply
brief but, in the instant case, since we will reverse the
examiner’s rejections, it is a moot point as to whether or not
the reply brief is entered.
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