Appeal No. 1997-3361
Application No. 08/554,939
Claims 1, 7, 8, and 9 stand rejected under 35 U.S.C. § 102
as anticipated by Kojima ‘370. 2 (Examiner’s answer, pages 4-7.)
Alternatively, claims 1, 7, 8, and 9 stand rejected under 35
U.S.C. § 103 as unpatentable over Kojima ‘370. ( Id.) Further,
claims 1, 7 through 9, 16 through 18, 20, 21, and 23 stand
rejected under 35 U.S.C. § 103 as unpatentable over Kojima ‘370
in view of Sasaki. (Examiner’s answer, pages 7-10.)
Additionally, claims 1, 7 through 10, and 21 stand rejected under
35 U.S.C. § 103 as unpatentable over Kojima ‘370 in view of
Kojima ‘272. (Examiner’s answer, pages 10-13.) 3
Upon review of the entire record, including all of the
appellants’ arguments and evidence, it is our judgment that the
examiner’s rejection under 35 U.S.C. § 102 is not well founded.
However, we agree with the examiner as to the rejections under 35
2 The examiner indicates that Kojima ‘370 is available as
prior art under either 35 U.S.C. § 102(a) or 35 U.S.C. § 102(e).
(Examiner’s answer, pp. 4-5.) Kojima ‘370, however, issued on
March 29, 1994, which is more than one year before the U.S.
filing date (November 9, 1995) of the present application.
Accordingly, under 35 U.S.C. §§ 102(b) and 119(a), Kojima ‘370 is
available as prior art under 35 U.S.C. § 102(b). Because the
appellants have not contested the availability of Kojima ‘370 as
prior art under 35 U.S.C. § 102/103, we consider the examiner’s
error to be inconsequential.
3 The examiner, however, has apparently withdrawn all
rejections based on U.S. Patent 5,401,621 as a prior art
reference. (Examiner’s answer, p. 4.)
4
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