Appeal No. 2002-1024
Application 09/156,060
The item relied on by the appellant as evidence of non-
obviousness is:
The 37 CFR § 1.132 Declaration of Mark Thomas Iverson
filed November 27, 2000 (Paper No. 13)
THE REJECTION
Claims 1 through 13 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Stirling.
Attention is directed to the appellant’s main and reply
briefs (Paper Nos. 21 and 23) and to the examiner’s final
rejection and answer (Paper Nos. 14 and 22) for the respective
positions of the appellant and the examiner regarding the merits
of this rejection.2,3
2 In the final rejection, claims 6 through 13 also stood
rejected under 35 U.S.C. § 112, second paragraph, as being
indefinite. The examiner has since withdrawn this rejection in
view of the amendment of claims 6 and 10 subsequent to final
rejection (see the advisory action dated February 22, 2001, Paper
No. 19).
3 Although the Brunswick Bowling Catalog reference which is
of record is cited on page 8 of the answer to support the
appealed rejection, it is not included in the statement of the
rejection. 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. See In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ
406, 407 n.3 (CCPA 1970) and MPEP § 706.02(j). Hence, we have
not considered the Brunswick reference in reviewing the merits of
the examiner's rejection.
3
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