Appeal No. 2001-1251 Page 2
Application No. 08/369,865
Hatton et al. (Hatton) 5,232,940 Aug. 3, 1993
Buntain et al. (Buntain)2
(European Patent Application) 0,295,117 A1 Dec. 14, 1988
GROUNDS OF REJECTION
Claims 2-8 stand rejected under 35 U.S.C. § 102(a) as anticipated by
Hatton.
Claims 2-8 stand rejected under 35 U.S.C. § 102(b) as anticipated by
Buntain.
We reverse.
DISCUSSION
Initially we note the prosecution history reflects that a rejection under 35
U.S.C. § 103 was made over Buntain. See Paper No. 19, page 2. We also note
the examiner was not persuaded by appellants’ evidence of non-obviousness
found in the Twinn declarations (executed February 25, 1994 and April 19, 1995)
filed under 37 CFR § 1.132. See Paper No. 19, pages 2-3. Nevertheless, the
examiner subsequently withdrew the rejection under 35 U.S.C. § 103 over
Buntain. See Paper No. 26, page 2. The only reasoning provided by the
examiner for withdrawing the rejection is “[t]he U.S. Patent version of …
[Buntain] has issued and is being used as a reference.” Id. While the record is
2 The examiner and appellants refer to this reference as ‘117. We will refer to this reference, as is
customary, by the name of the first inventor.
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