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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