Appeal No. 96-2573
Application No. 08/331,168
rejection at page 5 of the answer, and proceeds, at pages 5-64
of the answer, to set forth the reasoning for the rejection of
independent claims 27 and 45. Nowhere in this reasoning does
the examiner recognize any differences between the claimed
subject matter and that alleged to be taught by Chandler.
While such a rejection is not, technically, improper, since
anticipation is the epitome of obviousness, In re Fracalossi,
681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA 1982), it is merely
a matter of curiosity as to why, if the examiner, indeed,
thought that there were no differences, the rejection was not
made under 35 U.S.C. § 102.
At page 9 of the answer, the examiner concedes that
Chandler “does not teach all of the elements recited in the
claimed invention.” However, as stated supra, the examiner’s
rejection never alleges what elements of the claimed invention
are missing from Chandler.
In any event, in responding to appellants’ arguments, the
examiner, for the first time, recognizes a difference,
reporting, at page 8 of the answer, that
4It is noted that in the statement of the rejection,
the examiner mentions a claim “47" but it is clear that this
should have been claim “57.”
5
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