Appeal No. 1998-0328
Application No. 08/383,251
is forged (see column 3, line 46 of the Mitchell
specification), but does not indicate whether the pin member
is hot forged or cold forged.
We are not unmindful of the citation of the Crook,
Theobald and Gallagher references for the first time in the
examiner’s answer to support his position that cold forming is
“well known” in the ball and socket joint art as set forth in
the paragraph bridging pages 6 and 7 of the answer. Apart
from the fact that this appears to be a new position presented
for the first time in the answer and apart from the fact that
the examiner has failed to specifically refer to the Theobald
and Gallagher references, the examiner should have included
these additional references in the statements of the
rejections if he intended to rely upon them in support of his
position of obviousness. See In re Hoch, 428 F.2d 1341, 1342
n.3, 166 USPQ 406, 407 n.3 (CCPA 1970). For our review of the
standing rejections we shall therefore confine ourselves to
the prior art set forth in the statements of the rejections.
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