Appeal No. 1997-2242 Page 8
Application No. 08/084,370
The examiner states (answer, page 7) that the new prior art is
cited to show the state of the art in view of appellant’s
argument, for the first time, that the references to Jones and
Ewert “are not capable of being combined to produce the
claimed invention.” However, the examiner has not listed
either of these two references in the statement of the
rejection. In addition, the examiner only refers to the newly
cited Chen article in the “Response to argument” (italics
original) section of the brief. From our review of the
examiner’s answer, we are not aware of any reference to the
Rathunde patent, other than Rathunde being listed in the
examiner’s answer under the heading of “New prior art.”
Accordingly, the record is unclear as to how the examiner is
attempting to rely upon the Rathunde patent.
Appellant asserts (reply brief, page 5) that the Chen
article has a publication date of June 1994, which is later
than the filing date of appellant’s application, and is
therefore not entitled to prior art status relative to the
claimed invention.
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