Appeal No. 1998-3388
Application 08/370,551
CFR § 1.131 are sufficient to overcome the rejection of the appealed claims under
35 U.S.C. § 102(a) over Lewis. The examiner has not commented on or offered any
rebuttal to this evidence and arguments in the Examiner's Answer. While we could
postulate that the examiner remains of the opinion that these declarations are
insufficient to overcome this rejection for the reasons set forth in the several office
actions preceding the Examiner's Answer, we choose not to do so. Therefore, we
remand the application to the examining group in order to permit the examiner to
consider whether this series of declarations taken together or individually are sufficient
to remove Lewis as a reference with respect to the presently claimed invention. Should
the examiner maintain the rejection and find the declarations insufficient, an explanation
should be provided which clearly sets forth any criticisms of this evidence which would
explain why it should not be found persuasive. Thus, we do not reach the issues raised
by the rejection under 35 U.S.C. § 102(a) over Lewis and remand for further
consideration by the Examiner.
Other Issues
Upon return of this application to the examining group, we would urge the
examiner to step back and reconsider the relevance of Lewis with respect to the
presently claimed invention. As the examiner acknowledges (Answer, page 7) "Lewis
et al teach much the same as Criddle et al." Thus, this reference may well be subject
to the criticism which were determinative of the rejection of the claims over Criddle.
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