Appeal No. 98-2036
Application 08/589,250
Drake 2 4,934,740 Jun. 19,
1990
Claims 1 through 20 stand rejected under 35 U.S.C. § 103
as being unpatentable over Drake.3
Reference is made to the appellants' main and reply
briefs (Paper Nos. 9 and 11) and to the examiner's first
Office action and answer (Paper Nos. 5 and 10) for the
respective positions of the appellants and the examiner with
regard to the merits of this rejection.
2Also of record in the instant application is European
Patent Application 325,057 to Drake. It was not until the
answer (Paper No. 10) that the examiner clearly identified
which of the Drake references (the U.S. patent) was being
relied upon to support the appealed rejection, even though the
appellants had first raised the question in their response
(Paper No. 6) to the first Office action. Be this as it may,
the examiner's failure to provide a timely identification of
the reference relied upon, and the appellants' incorrect
assumption throughout the prosecution of the application and
on appeal that it was the European reference, have not
prejudiced the appellants in any substantive manner since the
disclosures of the two references are virtually identical.
3In the final rejection (Paper No. 7), the examiner also
rejected claim 8 under 35 U.S.C. § 112, second paragraph.
Since the examiner failed to restate this rejection in the
answer (Paper No. 10), we assume that it has been withdrawn
(see Ex parte Emm, 118 USPQ 180, 181 (Bd. App. 1957)).
3
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