Appeal No. 1999-0403
Application 08/804,095
rather than 35 U.S.C. § 103, the practice of nominally basing
rejections on § 103 when, in fact, the actual ground of
rejection is that the claims are anticipated by the prior art
has been sanctioned by a predecessor of our present review
court in In re Fracalossi, 681 F.2d 792, 794, 215 USPQ 569,
571 (CCPA 1982) and In re Pearson, 494 F.2d 1399, 1402, 181
USPQ 641, 644 (CCPA 1974). For these reasons, appellant’s
arguments of nonobviousness are simply not germane to the
novelty issue discussed above. The standing § 103 rejection
of claim 7 is therefore sustained.
Turning to claim 11, this claim differs from claim 7 in
that it is clearly directed to the combination of a protective
cover and a swimming pool. In rejecting this claim, the
examiner acknowledges that Lund’s inflatable article (i.e.,
tube 11) does not include plural rings and a floor. The
examiner directs
attention to Reinhardt “which discloses an analogous
inflatable article which includes plural rings 12, 14 and a
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