Appeal No. 98-1028
Application 08/378,809
Appellants’ invention pertains to a tie useful for
forming a loop for retaining a bundle of elongated articles.
Independent
claim 2, a copy of which appears in the appendix to
appellants’ brief, is illustrative of the appealed subject
matter.
The references of record cited by the examiner as
evidence of obviousness are:
Caveney 3,537,146 Nov. 3, 1970
McCormick 3,924,299 Dec. 9,
1975
Claims 2-8 stand rejected under 35 U. S. C. § 103 as
being unpatentable over McCormick in view of Caveney.2
The rejection is explained in the examiner’s answer
2Although the examiner relies on US Patent 4,473,524 to
Paradis which is of record in the instant application to
support his position on appeal (see page 4 of the answer), he
has not included this reference in the statement of the
rejection. Where a reference is relied on to support a
rejection, whether or not in a minor capacity, there is no
excuse for not positively including the reference in the
statement of the rejection. See Manual of Patent Examining
Procedure (M.P.E.P.) 706.02(j); In re Hoch, 428 F.2d 1341,
1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970) and Ex parte
Raske, 28 USPQ2d 1304, 1305 (BPAI 1993). Accordingly, we have
not considered the teachings of the Paradis patent in
reviewing the merits of the appealed rejection.
2
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