Appeal No. 2001-1808
Application 08/987,487
Claims 1 through 5 stand rejected under 35 U.S.C. §
102(b) as being anticipated by Kuoksa.
Claims 1 through 5 also stand rejected under 35 U.S.C.
§ 103(a) as being obvious over Kuoksa.
Attention is directed to the appellant’s main and reply
briefs (Paper Nos. 11 and 14) and to the examiner’s answer
(Paper No. 13) for the respective positions of the appellant
and the examiner with regard to the merits of these
rejections.1
DISCUSSION
I. The Kuoksa reference
Kuoksa pertains to markers designed to be inserted into
the ground to establish the boundary lines of an athletic
field. Each marker 8 comprises a conical pointed foot 9 of
wood or hard rubber and a plurality of strips 11 of soft white
1In the answer, the examiner refers to U.S. Patent Nos.
391,660 to Thayer and 1,263,198 to Brandt in apparent support
of the appealed rejections. The statements of the rejections,
however, do not include these patents. Where a reference is
relied on to support a rejection, whether or not in a minor
capacity, there is no excuse for not positively including the
reference in the statement of the rejection. In re Hoch, 428
F.2d 1341, 1342, n.3, 166 USPQ 406, 407, n.3 (CCPA 1970).
Accordingly, we have not considered Thayer or Brandt in
reviewing the merits of the appealed rejections.
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