Appeal No. 1997-0221
Application 08/248,496
Moorman Manufacturing Co. (Moorman), “IGR Minerals,” date
unknown;
Vit-A-Way, Inc. (Vit-A-Way), “Mineral-Vitamin Fortifier,” date
unknown.1
Claims 3 through 6 stand rejected under the first
paragraph of 35 U.S.C. § 112 “as the specification, as
originally filed, fails to provide support for the invention
as now claimed.” (Answer, page 4). All of the claims on 2
appeal stand rejected under 35 U.S.C. § 103 as unpatentable
over the “state of the art,” as exemplified by either ACCO or
Moorman, in view of Hogan and Vit-A-Way (Answer, page 5). We 3
reverse all of the examiner’s rejections for reasons which
1 The Moorman and Vit-A-Way references with unknown publication dates were cited
in appellant’s information disclosure statement dated June 10, 1994, Paper No. 2. In
the examiner’s action dated June 13, 1995, Paper No. 6, the examiner noted that certain
references were cited in the information disclosure statement without any publication
dates, assumed that these references were available as prior art, and requested any
information from appellant regarding the publication dates (paragraph 14). However,
there is nothing in the record before us as to the publication dates of these
references. Since appellant does not contest the availability of these references as
prior art, for purposes of this appeal we adopt the examiner’s assumption that these
references are available as prior art under 35 U.S.C. § 103.
2 The final rejection of claims 1-7 under the second paragraph of 35 U.S.C. § 112
has been overcome in view of appellant’s response subsequent to the final rejection (see
the amendment dated Jan. 16, 1996, Paper No. 9, and the Advisory Action dated Feb. 7,
1996, Paper No. 10).
3 The examiner applies Hawley as a “factual reference” to show the composition of
“trona” as disclosed by Hogan (Answer, page 5). Since appellant does not contest this
definition of “trona,” we accept the examiner’s finding as fact and no further
discussion of Hawley is necessary to this decision.
3
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