Appeal No. 2001-0968
Application No. 08/894,423
1 The examiner also refers to U.S. Patent 5,244,854 to Noristi et al. (Noristi) issued on Sep.
14, 1993. (Examiner's answer, p. 5.) However, we will not consider Noristi as part of the evidence
relied upon in the examiner's rejection, because this reference was not positively included in the
examiner's statement of the rejection. In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3
(CCPA 1970)("Where a reference is relied on to support a rejection, whether or not in a 'minor
capacity,' there would appear to be no excuse for not positively including the reference in the
statement of rejection.").
2 We wish to commend the appellants' counsel for his candor
in this regard.
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