Appeal No. 1998-2768
Application No. 08/520,802
examiner in rejecting the appealed claim is:
Airy et al. (Airy) 5,052,379 Oct. 01, 1991
(filed Apr. 27, 1989)
Claim 41 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Airy.2
Rather than reiterate the examiner's full statement of
the above-noted rejection and the conflicting viewpoints
advanced by the examiner and appellants regarding the
rejection, we make reference to the examiner's answer (Paper
No. 22, mailed October 27, 1997) for the reasoning in support
of the rejection, and to appellants’ brief (Paper No. 21,
filed August 25, 1997) and reply brief (Paper No. 23, filed
December 29, 1997) for the arguments thereagainst.
2 As for the Rawcliffe patent relied upon by the examiner on page 6 of
the answer, we note that this patent has not been set forth in the statement
of the § 103 rejection before us on appeal and therefore forms no part of the
issues presently before us for review. As pointed out by the Court in In re
Hoch, 428 F.2d 1341, 1342, 166 USPQ 406, 407 (CCPA 1970), where a reference is
relied upon to support a rejection, whether or not in a minor capacity, there
would appear to be no excuse for not positively including the reference in the
statement of the rejection.
3
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