Appeal No. 1997-2512
Application No. 08/118,905
the issues relating to the § 112 rejections are not part of this appeal, and the only issues to
be resolved in this appeal are as follows:
1. Whether the examiner erred by finally rejecting claims 12 and 13 under 35
U.S.C. § 102(b) as anticipated by Whittaker; and
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2. Whether the examiner erred by finally rejecting claims 14 and 15 under
35 U.S.C. § 103 as unpatentable over Frenkel in view of Whittaker
or Cassou.4
We reverse both the rejections.
In reaching our decision in this appeal, we have reviewed the specification, the
claims, and the applied prior art, including all of the arguments advanced by the appellants
and the examiner in support of their respective positions. As a result of this review, we
make the determinations below.
Claim Interpretation
3 The statement of rejection on page 3 (2nd full paragraph) of the Examiner’s Answer
indicates that claims 12-15 stand rejected under 35 U.S.C. § 103. However, it appears that this
statement contains a typographical error, since only claims 14 and 15 are indicated as rejected
under this same ground on page 5 (last paragraph) of the Answer and also on page 5 (paragraph
32) of the final Office action.
4 The statement of rejection on page 3 (2nd full paragraph) of the Answer fails to mention
Cassou as one of the references relied upon to establish obviousness. However, the Examiner’s
Answer at page 2 lists Cassou as one of the references relied upon to reject the claims on appeal.
In addition, the statement of rejection on page 5 (paragraph 32) of the final Office action expressly
includes Cassou as one of the references relied upon to support the examiner’s conclusion of
obviousness. Therefore, it appears that the examiner’s omission of Cassou from the statement of
rejection in the Answer was inadvertent. Accordingly, we will consider Cassou in this instance to
avoid the possibility of piecemeal appeal and to ensure administrative efficiency.
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