Appeal No. 1997-1594
Application No. 08/247,090
Based upon the above findings, we conclude that Chen
teaches each of the required elements of the claimed subject
matter. Appellants argue on pages 12 and 13 of the Brief that
numerous additional limitations to claim 1 submitted under 37
CFR § 116 have been denied entry by the examiner. However,
these arguments are not relevant in deciding the issue before
us. Our consideration is necessarily limited to the claimed
subject matter as it appears before us. Accordingly, we will
sustain the rejection by the examiner on the grounds of
anticipation.
C. The Rejection under 35 U.S.C. § 103
Claims 1 through 14 and 26 through 30 stand rejected
under 35 U.S.C. § 103 as being unpatentable over Chen in view
of Rohrig. We shall sustain this rejection. We found supra,
that the above claims stand together on the issue of
obviousness, and we have previously affirmed the § 102
rejection of independent claims 1 and 23 as being anticipated
by Chen. It is well settled that the ultimate obviousness, is
lack of novelty. The claims cannot have been anticipated and
not have been obvious. In re Fracalossi, 681 F.2d 792, 794,
215 USPQ 569, 571 (CCPA 1982). Accordingly, there is no
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