Appeal No. 1997-0793
Application 08/107,633
THE REJECTIONS
The claims stand rejected under 35 U.S.C. § 103 as
follows: claims 1-3 and 10 over Roetheli taken with Friedman,
Reh and
Howard, and claims 2-4 over these references further taken
with Barr.1,2
OPINION
We affirm the rejection of claims 1, 4 and 10 and reverse
the rejections of claims 2 and 3.
Claims 1 and 10
Appellant states that claims 1 and 10 stand or fall
1A rejection under 35 U.S.C. § 112, first and second
paragraphs, is withdrawn in the examiner’s answer (page 2).
2The examiner argues that application no. 609,662, and
U.S. 2,579,398 which issued therefrom, are incorporated by
reference in Roetheli, and the examiner relies upon the
‘398 patent (answer, pages 4 and 6-7). Roetheli refers to
this application (col. 6, lines 1-3), but does not incorporate
it by reference. The 609,662 application was filed as a
continuation-in-part of the application which led to Roetheli,
more than two years after that application was filed. Because
the 609,662 application and the patent which issued therefrom
are not incorporated by reference in Roetheli and the examiner
has not included the ‘398 patent in the statement of the
rejection, this patent is not properly before us.
Consequently, we do not rely upon this reference in reaching
our decision.
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