Appeal No. 1997-2873
Application 08/417,858
The references relied on by the examiner are:
Schrage et al. (Schrage) 3,577,393 May 4, 1971
Yamamoto et al (Yamamoto) 3,674,755 Jul. 4, 1972
Longi et al. (Longi) 3,684,782 Aug. 15, 1972
Thurn et al. (Thurn) 3,873,489 Mar. 25, 1975
Kempermann et al. (Kempermann) 4,003,843 Jan. 18, 1977
The examiner has rejected appealed claims 1 through 12, 14 through 23, 25 through 31,
33 and 36 under 35 U.S.C. § 103 as being unpatentable over Kempermann and as being
unpatentable over Kempermann or Thurn combined with applicants’ disclosure of prior art at
page 15, lines 12-25, of the specification, and Longi, Yamamoto and Schrage1 (answer, pages 3-
4).
Appellants state in their brief (page 7) that the appealed claims “stand or fall together.”
Thus, we decide this appeal based on appealed claim 1. 37 CFR § 1.192(c)(7) (1995).
We affirm both grounds of rejection.
Rather than reiterate the respective positions advanced by the examiner and appellants,
we refer to the examiner’s answer and to appellants’ brief for a complete exposition thereof.
Opinion
We have carefully reviewed the record on this appeal and based thereon find ourselves in
agreement with the examiner that the claimed vulcanizable rubber composition encompassed by
appealed claim 1 would have been obvious over the teachings of Kempermann and the combined
teachings of Kempermann, Thurn, applicants’ disclosure of prior art at page 15, lines 12-25,
Longi, Yamamoto and Schrage to one of ordinary skill in this art at the time the claimed
invention was made. We find it necessary to our decision to discuss only Kempermann and
Thurn. See In re Kronig, 539 F.2d 1300, 1302-04, 190 USPQ 425, 426-28 (CCPA 1976).
1 This ground of rejection is set forth in the answer as applying to claims 14 through 31, 33 and
36 even though all appealed claims, including claims 1 through 12, were so rejected in the final
rejection. Since the examiner has not expressly withdrawn this ground of rejection with respect
to claims 1 through 12, claims 14 through 31, 33 depend on claim 1, and appellants have briefed
this ground with respect to claims 1 through 12, we consider the examiner’s failure to include
claims 1 through 12 in the statement of the rejection as harmless error. We note again here that
the examiner withdrew the grounds of rejection with respect to appealed claim 24, holding the
same to be withdrawn from further consideration under 37 CFR § 1.142(b) (see above p. 1).
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