Appeal No. 97-3749
Application 08/360,069
Rather than repeat the arguments of appellant or the examiner, we make reference
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to the brief and the answer for the respective details thereof.
OPINION
We have carefully considered the subject matter on appeal, the rejections advanced
by the examiner and the evidence of obviousness relied upon by the examiner as support
for the rejections. We have, likewise, reviewed and taken into consideration, in reaching
our decision, the appellant’s arguments set forth in the brief along with the examiner’s
rationale in support of the rejections and arguments in rebuttal set forth in the examiner’s
answer.
It is our view, after consideration of the record before us, that the evidence relied
upon and the level of skill in the particular art would not have suggested to one of ordinary
skill in the art the obviousness of the invention as set forth in claims 1-8. Accordingly, we
reverse.
3Although the answer indicates that new grounds of rejection had been made,
appellant did not file a reply brief responsive to the new grounds of rejection. Since the
initial appeal brief contains arguments as to why the collective teachings of Hirai,
Jamzadeh and Yip do not render the claimed invention obvious, these arguments
necessarily also respond to a rejection made on the same references or a lesser number
of these references. Therefore, appellant’s failure to file a reply brief to the new grounds of
rejection cannot be considered as an acquiescence to these new grounds of rejection.
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