Appeal No. 1999-0349
Application 08/621,379
examiner cites In re Chevenard, 139 F.2d 71[sic: 711], 160
USPQ 239 (CCPA 1943).
In In re Soli, 317 F.2d 941, 946, 137 USPQ 797, 800 (CCPA
1963) the court stated
This court has long held that wherever possible,
issues should be crystallized before appeal to
this court. It is neither the function of oral
arguments nor briefs before this court to question
for the first time the propriety of actions of the
examiner or the board to which a response conveniently
could have been made before the Patent Office. See
In re Chevenard, 31 CCPA 802, 139 F.2d 711, 60 USPQ 239.
We find that although the appellants should have traversed the
examiner’s statement of well-known prior art in the subsequent
response instead of the response filed under 37 CFR § 1.116,
the examiner could have added a reference showing the well-
known prior art in the examiner’s answer. Such a showing by
the examiner would not have created a new ground of rejection
on appeal. While antireflection coatings on glass are
commonly known, there is no evidence of record to establish
the obviousness of the specific claimed location on the inside
of the inner glass plate of Hashimoto, because of the claimed
placement of the reflection film between the polarization-
direction changing film and the first (inner) glass plate.
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