Appeal No. 1997-3731
Application No. 08/152,089
Claims 1 and 3 through 7 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Roland in view of either the
Japanese reference or Bennett and either Levinstein ‘201 or
Laporte.3
The full text of the examiner’s rejection and response to
the argument presented by appellant appears in the answer
(Paper No. 31), while the complete statement of appellant’s
argument can be found in the main and reply briefs (Paper Nos.
30 and 32).4
OPINION
In reaching our conclusion on the obviousness issue
raised in this appeal, this panel of the board has carefully
considered appellant’s specification and claims, the applied
3Appellant has appropriately pointed out (main brief,
page 6) that the examiner in the answer (page 5) relies upon
admitted prior art discussed in the present specification
(page 1, line 20 to page 2, line 9) without listing same in
the rejection. Where a reference is relied on to support a
rejection, whether or not in a minor capacity, there would
appear to be no excuse for not positively including the
reference in the statement of rejection. See In re Hoch, 428
F.2d 1341, 1342, 166 USPQ 406, 407 (CCPA 1970).
4A supplement to the appeal brief was filed by appellant
(Paper No. 35), responsive to an order for compliance (Paper
No. 34) providing omitted information.
4
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