Appeal No. 1998-2562
Application No. 08/567,403
required under 35 U.S.C. § 102. Therefore, we do not sustain
the examiner’s rejection of claims 13, 17, 18 and 23 as being
anticipated by the disclosure of Bennin.
We now consider the rejection of claims 19-22 and 24-26
under 35 U.S.C. § 103 as being unpatentable over the teachings
of Bennin taken alone. This rejection fundamentally relies on
the examiner’s interpretation of Bennin as discussed above
with respect to the rejection under 35 U.S.C. § 102. Since
the anticipation rejection was based on an improper finding
that Bennin disclosed the tongue as recited in claim 13, this
rejection under 35 U.S.C. § 103 never addresses the
obviousness of the differences between the claimed tongue and
the tongues as taught by Bennin. Therefore, the examiner has
failed to establish a prima facie case of the obviousness of
these claims. Accordingly, we do not sustain the examiner’s
rejection of claims 19-22 and 24-26 based on the teachings of
Bennin taken alone.
In summary, we have not sustained either of the
examiner’s rejections of the claims on appeal. Therefore, the
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