Ex parte GARIBOLDI - Page 2




          Appeal No. 98-0494                                                          
          Application No. 07/954,056                                                  


               The references relied upon by the examiner are:                        
          Fillmore       D-215,641                Oct. 21, 1969                       
          Harris         3,845,506                Nov.  5, 1974                       
               The sole issue in this appeal is whether the design claim was          
          properly rejected under 35 U.S.C. § 103 as unpatentable over the            
          combination of Harris and Fillmore.2  We reverse this rejection.            
                                     Discussion                                       
               According to appellant (Brief, pp.2-3):                                
                    The invention relates to a pantyhose, or stockings                
               article, which is formed of a knitted piece which is                   
               uninterrupted except for the transverse portion between                
               the upper ends of the legs and the horizontal end portion              
               of each toe. . . .                                                     

               2    In the brief, appellant states the issue on appeal as             
          "[w]hether the claim is obvious under 35 U.S.C. §103 as unpatentable        
          over Harris" (Brief, p.3).  However, the examiner points out (Answer,       
          p.3):                                                                       
                    The appellant's statement of the issues in the brief              
               is incorrect in that it omits the secondary reference to               
               Fillmore relied on in the rejection.  In order to clarify              
               the record in the 103 rejection of 7/[27]/94 [Paper No.                
               4], it is noted that while the initial sentence of the                 
               rejection cited only the reference to Harris, Fillmore was             
               clearly relied on as a secondary reference in the body of              
               the rejection.  The references relied on were correctly                
               stated in the initial sentence of the subsequent final                 
               rejection (1/10/95) [Paper No. 7].                                     
          See Paper No. 7, p.2 ("The claim is again and FINALLY REJECTED under        
          35 U.S.C. 103 as being unpatentable over Harris in view of                  
          Fillmore.").  Nevertheless, we note that both the brief and the reply       
          brief respond to the rejection of the design claim under 35 U.S.C. §        
          103 based on the combined teachings of Harris and Fillmore.                 
                                          2                                           





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