Appeal No. 1999-0615
Application No. 08/786,974
15 under 35 U.S.C. § 103 as being unpatentable over Good in
view of Farison and Stults as applied to claims 1, 12 and 14
above and further in view of Teske, we have reviewed the Teske
patent and find nothing therein which provides for that which
we have indicated above to be lacking in the examiner's main
combination of Good, Farison and Stults. Thus, the examiner's
rejection of
claims 6 through 9 and 15 under 35 U.S.C. § 103 also will not
be
sustained.1
1 As for the Horner patent relied upon by the examiner on
page 12 of the answer, we note that this patent has not been
set forth in the statement of the § 103 rejection before us on
appeal and therefore forms no part of the issues presently
before us for review. As pointed out by the Court in In re
Hoch,
428 F.2d 1341, 1342, 166 USPQ 406, 407 (CCPA 1970), where a
reference is relied upon 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
the rejection.
12
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