Ex parte AKIOKA et al. - Page 5




          Appeal No. 1996-1777                                       Page 5           
          Application No. 08/034,009                                                  

               At the outset, we note that appellants urge that neither               
          Akioka '797 or Kobayashi as separately applied by the examiner              
          against claim 24 is available as prior art thereto (reply                   
          brief, pages 3, 4, 7, and 8).  The examiner contends                        
          otherwise.  However, even if both of the above-noted                        
          references were available as prior art to appealed claim 24,                
          we determine that the examiner has not presented a prima facie              
          case of anticipation or obviousness, on the present record.                 
          Accordingly, we will not sustain the stated rejections for the              
          reasons as follows.                                                         
               With regard to the examiner's stated rejection of claim                
          24 under either 35 U.S.C.  102(b) as anticipated by, or in                 
          the alternative, under 35 U.S.C.  103 as obvious over Akioka               
          '797, we observe that the examiner acknowledges that Akioka                 
          '797 does not teach appellants' claimed strain rate (answer,                
          page 4).  Not withstanding that acknowledged process                        
          difference, the examiner maintains that Akioka '797                         
          anticipates or renders obvious the claimed product magnet                   
          since, according to the examiner, the magnet of Akioka '797 is              
          of the same composition as appellants’                                      









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