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. 2Page: Previous 1 2 3 4 5 6 7 8 9 NextLast modified: November 3, 2007