Appeal No. 1997-0327 Page 4
Application No. 08/204,150
Claims 6-11 stand rejected under 35 U.S.C. § 103 as being1
unpatentable over Hoeffkes.
OPINION
Upon careful review of the record presented on appeal, we
find ourselves in agreement with appellants’ view that the
examiner has failed to carry the burden of establishing a
prima facie case of obviousness. In re Oetiker, 977 F.2d
1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re
1The examiner’s statement that claims 6 and 8 through 11
are being rejected at the bottom of page 2 of the answer
involves an obvious error in the omission of claim 7. This is
so since the examiner indicates that the status of the claims,
the statement of the issues, and the grouping of claims
section presented in the brief, and the copy of the appealed
claims in the appendix to the brief are correct (answer, pages
1 and 2). Those items all refer to claims 6 through 11. We
further note that the final rejection (page 2) includes an
interlineation, in ink, that changes the rejected claims from
claims 6 and 8 through 11 to claims 6 through 11, which
corresponds to the cover page of the final rejection. Also,
we did not uncover an express withdrawal of the rejection of
claim 7 in our review of the answers. In light of the above
together with appellants' briefs having been directed to the
rejection of all of claims 6 through 11, we further consider
the error of omitting claim 7 from the stated rejection in the
answer as harmless. Accordingly, we determine that the
examiner’s stated rejection pertains to all of appealed claims
6 through 11.
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