Appeal No. 1999-0281 Page 5
Application No. 08/629,727
Claims 1 to 7, 9 to 20 and 22
We agree with the examiner that the subject matter of
claims 1 to 7, 9 to 20 and 22 would have been obvious to one
of ordinary skill in the art at the time the invention was
made from the teachings and suggestions of the applied prior
art as set forth on pages 3-5 of the answer.
Both the appellants (brief, p. 5) and the examiner
(answer, p. 5) agree that
the gravamen of this appeal is whether or not the Jacobs
37 C.F.R. § 1.132 Declaration removed Kolbus as the
primary reference. If so, then the claims are allowable
because the secondary references do not show all the
elements of the claims.
It is our opinion that the Jacobs 37 CFR § 1.132
declaration fails to remove Kolbus as a reference available3
under 35 U.S.C. § 102(e) for the reasons that follow.
35 U.S.C. § 102 states, in pertinent part:
A person shall be entitled to a patent unless-
3Filed December 22, 1997 (part of Paper No. 4).
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