Appeal No. 1998-3336 Page 4
Application No. 08/527,788
Otten et al. (Otten) 5,228,469 July 20, 1993
Claims 1, 3-5, and 7-10 stand rejected under 35 U.S.C. § 103
as obvious over Otten in view of Bartley further in view of
Frew. Rather than repeat the arguments of the appellant or
examiner in toto, we refer the reader to the briefs and answer
for the respective details thereof.
OPINION
In deciding this appeal, we considered the subject matter
on appeal and the rejection advanced by the examiner.
Furthermore, we duly considered the arguments and evidence of
the appellant and examiner. After considering the record, we
are persuaded that the examiner erred in rejecting claims 1,
3-5, and 7-10. Accordingly, we reverse.1
1We note that the examiner improperly applied a new
grounds of rejection in the answer by adding Bartley to the
combination of Otten and Frew. (See 37 CFR 1.193(a)(2) and
reply at page 1).
While, this appeal has not proceeded according to the
established rules, we will decide the appeal on the merits
rather than delay our decision with a remand.
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