Appeal No. 1996-3787
Application No. 07/607,870
Claims 38, 39 and 41 through 47 stand rejected under 35
U.S.C. § 103 as unpatentable over the combined disclosures of
Katayama and Osato.
We reverse.
To a large extent, we agree with appellants’ arguments on
appeal. The examiner simply has not supplied any motivation
for utilizing a magneto-optical recording medium having, inter
alia, a magnetic recording layer having the claimed thickness,
10-50 nm, and the claimed properties. Although the examiner
refers to Katayama to establish obviousness of the claimed
recording layer of a magneto-optical recording medium, it only
discloses a photo-thermo-magnetic recording medium having a
magnetic recording layer having a thickness of about 1000 to
5000 angstrom (about 100 to 500 nm), a large coercive force
9, 1995 and in the Answer. Appellants have also responded to
the examiner’s § 103 rejection as though it relies on Osato
‘977. See Brief, page 23. Accordingly, we will presume that
the examiner’s § 103 rejection is based on, inter alia, Osato
‘977 (U.S. Patent No. 4,664,977) rather than the published
European Patent Application. If the examiner’s intention is
to rely on the published European Patent Application, he must
set forth a new ground of rejection and reopen the prosecution
of this application.
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