Appeal No. 2001-0321
Application 08/888,671
As acknowledged by the examiner, the EDN reference “was
not relied upon per se in the ground of rejection, but was
made of record and used to support what the Examiner believes
[is] common knowledge in the art” (answer, pages 5 and 6,
n.2). The examiner further explains that “[s]uch knowledge,
which was relied upon from the beginning of prosecution . . .
and is pertinent to the Examiner’s rejection, pertains to the
high susceptibility of EMI in a cable-to-connector interface
and a connector-to-connector interface. When questioned by
Appellant[s] to provide evidence to this fact, the Examiner
provided the EDN reference” (answer, page 8).
The examiner’s explanation of the rejection (see pages 5
through 10 in the answer) and response to the appellants’
argument (see pages 10 through 14 in the answer) confirm that
the EDN reference is an integral part of the examiner’s
evidentiary showing. Nonetheless, the examiner has chosen not
to include this reference in the statement of the rejection.
Where a reference is relied on to support a rejection, whether
or not in a minor capacity, there is no excuse for not
positively including the reference in the statement of the
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