Ex parte MILLER et al. - Page 8




          Appeal No. 2000-1914                                                        
          Application No. 08/718,643                                                  


          information. However, appellants request reconsideration of                 
          the refusal to consider the declaration and also point out                  
          that an amendment accompanies the appeal brief providing an                 
          updated sales report and a declaration (Raymond Iannetta).                  
          The examiner should address the noted request and amendment,                
          each of which were not mentioned in the answer.                             


               As a final point, we note that should the examiner reject              
          claims under 35 U.S.C. § 103, with evidence of nonobviousness               
          (secondary considerations) entered into the application, the                
          examiner must assess the evidence of obviousness with the                   
          evidence of nonobviousness; See In re Piasecki, 745 F.2d 1468,              
          1472, 223 USPQ 785, 788 (Fed. Cir. 1984).                                   


               In summary, this panel of the board has:                               


               reversed the rejection of claims 1 through 7, 11 through               
          16, 19, 21, 22, 27, 31, 32, 34 through 36, 40, 48, 49, and 55               
          through 57  under 35 U.S.C. § 103(a) as being unpatentable                  
          over Deyoreo;                                                               


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