Appeal No. 2000-0064
Application 08/625,241
To the extent that appellants’ request asks that we use
our discretionary authority to remand this appeal to the
examiner, we also decline to remand on that basis. The Board can
remand an appeal to the examiner to request clarification of the
record. In this appeal, however, the record is clear. The
rejection made in the examiner’s answer is identical to the
rejection made in the final rejection except that the reference
to Stone, which was clearly used in the final rejection, has now
been identified in the statement of the rejection. No
clarification of the record is necessary because both the
examiner and appellants have made their positions on Stone clear
on this record. The change in the statement of the rejection in
the examiner’s answer was a technical change rather than a
substantive change. Therefore, this rejection is properly before
us, and we will decide this appeal on the merits.
We now consider the single remaining rejection of claims
19-22 and 31-33 under 35 U.S.C. § 103 as being unpatentable over
the teachings of Fleming and Stone. In rejecting claims under 35
U.S.C. § 103, it is incumbent upon the examiner to establish a
factual basis to support the legal conclusion of obviousness.
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