Appeal No. 1998-0483
Application No. 08/543,840
Herdzina at, for example, col. 2, lines 66-69 and col. 3,
lines 1-2.
Our conclusion that Herdzina satisfies all the
limitations of claims 7 through 9 is tantamount to a holding
that those claims are anticipated under 35 U.S.C § 102(b).
Nevertheless, it is proper to sustain the § 103 rejection
because lack of novelty is the epitome of obviousness. See In
re Fracalossi, 681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA
1982).
Accordingly, we sustain the examiner's rejection of
appealed claims 7 through 9 under 35 U.S.C. § 103.
CONCLUSION
To summarize, the decision of the examiner to reject
claims 1 through 6 and 12 through 18 under 35 U.S.C. § 112 is
reversed; a new 35 U.S.C. § 112, second paragraph, rejection
of 1 through 6, 10 and 11 is entered pursuant to 37 CFR
1.196(b); the decision of the examiner to reject claims 1
through 6, 10 through 13 and 15 through 18 under 35 U.S.C. §
13
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