Appeal No. 1998-0187
Application No. 08/247,518
person of ordinary skill in the art. See In re Bozek, supra. 7
For the foregoing reasons, the rebuttal evidence is given
little weight. Thus, it is our conclusion that, on balance,
the evidence and argument provided by the appellant fails to
outweigh the evidence of obviousness established by the prior
art. This being the case, we will sustain the examiner’s
rejection of claim 8. Since claims 9, 10 and 12 through 14
stand or fall with independent claim 8, supra, it follows that
we will also sustain the standing 35 U.S.C. § 103(a) rejection
of those claims.
Claims 39 and 40 depend from claim 8. Claim 39 adds that
the injection molding step is characterized by the production
of an essentially homogeneous construction. Claim 40 includes
the same language as claim 39 and adds that the homogeneous
7On pages 14 and 15 of the Answer, the examiner refers
to a non-applied publication and three non-applied patents to
Jung, Fanelli et al. and Ando et al. as supporting his
position that the advantages identified in the declarations
are not unexpected. For the reasons set forth in the case of
In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3
(CCPA 1970), we have not considered these patents or the
examiner's comments with respect thereto in reaching our
decision on this appeal.
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