Appeal No. 2000-2150
Application 29/083,483
In view of the foregoing, we reverse the rejection of the
design claim on appeal under 35 U.S.C. § 103. As such, we have
no need to consider the evidence provided by the second
declaration to Mr. Eggert as to commercial success.
Finally, we make note of the examiner's comment at page 6 of
the answer where the examiner states "said line of demarcation is
old in the art as evidenced by Bonney Wrenches (right bottom of
page 9 of Bonney wrenches Catalog)." This comment by the
examiner is noted, but it is untimely. This reference is not
part of the stated rejection under 35 U.S.C. § 103. Note In re
Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970).
A study of the application file reveals that this reference to
Bonney wrenches was filed as part of the application papers as
Paper No. 2 by appellants utilizing PTO Form 1449 as a part of
appellants' Information Disclosure Statement.
Pursuant to 37 CFR § 1.196(a) and the Manual of Patent
Examining Procedure (MPEP) § 1211, this application is remanded
to the examiner to consider instituting art rejections under
35 U.S.C. § 102 and/or 35 U.S.C. § 103 based upon the Bonney
wrenches reference since the examiner has indicated at page 6 of
the answer that "said line of demarcation is old in the art."
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