Ex parte GARIBAY et al. - Page 5




                     Appeal No. 1997-0300                                                                                                                                              
                     Application 08/138,790                                                                                                                                            



                                           Claims 11 through 24  stand rejected under 35 U.S.C.2                                                                                                
                      103 as being unpatentable over Shimp and Ardini.                                                                                                                
                                           Rather then reiterate the arguments of Appellants                                                                                           
                     and the Examiner, reference is made to the briefs  and the                                                3                                                       
                     answer for the respective details thereof.                                                                                                                        


                                                                                   OPINION                                                                                             
                                           We will not sustain the rejections of claims 11                                                                                             
                     through 24 under 35 U.S.C.  103.                                                                                                                                 
                                           The Examiner has not set forth a prima facie case.                                                                                          
                     It is the burden of the Examiner to establish why one having                                                                                                      
                     ordinary skill in the art would have been led to the claimed                                                                                                      


                                2It is noted that the Examiner and Appellants are in                                                                                                   
                     disagreement as to whether Claims 11 and 16 contain the word                                                                                                      
                     “length” or “width.”  As there are no rejections or amendments                                                                                                    
                     addressing this language on the record, there is no issue                                                                                                         
                     before us concerning this claim language.  Accordingly, this                                                                                                      
                     opinion addresses the claims as submitted by Appellants in the                                                                                                    
                     January 10, 1996 appeal brief as appendix A.  Nonetheless, our                                                                                                    
                     decision concerning the rejection on appeal does not rely upon                                                                                                    
                     an interpretation of the disputed claim language.                                                                                                                 
                                3  Appellants filed an appeal brief on January 10, 1996.                                                                                               
                     Appellants filed a reply brief on May 20, 1996.  On November                                                                                                      
                     1, 1996, the Examiner mailed a communication stating that the                                                                                                     
                     reply brief has been entered and considered.                                                                                                                      
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