Appeal No. 1997-2242 Page 10
Application No. 08/084,370
“[b]y logical extension, a second disk failure would result in
a RAID level-0 disk array.” (emphasis original) From the Chen
article, it is not altogether clear as to whether the quote is
from the Gibson paper or the Chen article. The quote does not
appear in the Chandy paper. the Gibson paper is of record.
However, only an abstract of the Gibson article appears in the
application file. Also of note is the fact that no arguments
regarding this quote relied upon by the examiner, are made by
the appellant in the reply brief.
"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 rejection." In re Hoch, 428 F.2d 1341, 1342 n.3,
166 USPQ 406, 407 n.3 (CCPA 1970). It is clear that the
references to the Rathunde patent and the Chen article have
not been included in the statement of the rejection set forth
by the examiner. In view of our analysis, supra, we conclude
that the references to the Rathunde patent and the Chen
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