Appeal No. 2001-2330
Application No. 09/245,443
can be derived from a reading of exemplary claims 1, 12 and 13,
which appear in the appendix to appellant’s main brief.
The references applied in the final rejection as evidence
of obviousness are:1
Held 2,952,925 Sep. 20, 1960
Olson et al. 5,678,833 Oct. 21, 1997
Lin 5,570,523 Nov. 5, 1996
Claims 1-8 and 11-15 stand rejected under 35 U.S.C. § 103
as being unpatentable over Olson in view of Lin.
Claims 9 and 10 stand rejected under 35 U.S.C. § 103 as
being unpatentable over Olson in view of Lin and Held.
Reference is made to appellant’s main and reply briefs
(Paper Nos. 13 and 16) and to the examiner’s answer (Paper No.
1On page 7 of the answer, the examiner has mentioned
several patents that purportedly show a boot liner with a
tongue, but these patents have been given no consideration on
appeal since they have not been listed among the references
relied upon, and since they have not been included in the
statement of the rejection. Ex parte Raske, 28 USPQ2d 1304,
1304-05 (Bd. Pat. App. & Int. 1993). Compare In re Hoch, 428
F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970), cited
in Section 706.02(j), Manual of Patent Examining Procedure
(“Where a reference is relied on 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.”).
2
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