Appeal No. 1998-2893
Application 08/467,552
In the request, appellant points out that on September 1,
1999, he filed a paper (Paper No. 27) withdrawing the appeal
as to claims 1, 2, 5 to 7, 16, 17 and 19 to 21. This paper
was inadvertently overlooked when our decision was rendered.
Accordingly, the decision is vacated with regard to claims 1,
2, 5 to 7, 16, 17 and 19 to 21, which will be treated as
provided in MPEP § 1215.03.
As to the remaining claims 8, 9, 12 to 15, 22, 23 and 25
to 28, the reversal of the rejection under § 103(a) and the
new ground of rejection pursuant to 37 CFR 1.196(b) remain
extant.
With regard to the new ground, appellant contends in
essence that claims 8, 9, 12 to 15, 22, 23 and 25 to 28 are
not anticipated by Takenaka, the reference applied under §
102(b), because, in addition to the toxin delivery housing
disclosed by Takenaka, independent claims 8 and 22 both
require a casing for defining a cavity in the ground. We
agree. Since Takenaka does not disclose a casing as claimed,
it cannot anticipate. Kloster Speedsteel AB v. Crucible Inc.,
793 F.2d 1565, 1571, 230 USPQ 81, 84 (Fed. Cir. 1986)
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