Appeal No. 98-1200
Application 08/589,780
Lewis.
Reference is made to the appellant's main and reply
briefs (Paper Nos. 12 and 14) and to the examiner's final
rejection and
answer (Paper Nos. 4 and 13) for the respective positions of
the
appellant and the examiner with regard to the merits of this
rejection. 2
As indicated above, independent claim 18 recites a
mounting device comprising, inter alia, a split sleeve
2On page 3 in the answer, the examiner refers to U.S.
Patent Nos. 5,590,565 to Palfenier et al. and 5,203,861 to
Irwin et al. to support his position on appeal. Neither of
these references, however, appears in the statement of the
appealed 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. In re Hoch, 428 F.2d 1341, 1342
n.3, 166 USPQ 406, 407 n.3 (CCPA 1970). Accordingly, we have
not considered the teachings of Palfenier et al. or Irwin et
al. in reviewing the merits of the examiner's rejection.
3
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