Appeal No. 2002-1086
Application 09/297,065
Attention is directed to the appellants’ main and reply
briefs (Paper Nos. 14 and 17) and to the examiner’s answer (Paper
No. 15) for the respective positions of the appellants and the
examiner with regard to the merits of this rejection.2
DISCUSSION
Hansson, the examiner’s primary reference, discloses a
method of filling a sack composed of an outer paper bag 12 and an
inner plastic bag 7. To facilitate recycling, the plastic bag
lies loosely within the paper bag without being joined thereto by
adhesives (see column 1, lines 16 through 36). Hansson describes
the method as follows:
A method for filling packaging including an outer paper
packaging member and an inner plastic film bag member
with a filling material that is contained in a filling
material container arranged above the packaging. The
method includes, in the vicinity of the filling
material container, forming the plastic film bag member
from a tubular film by providing a welded seam along a
lower edge. The bag is spread apart at an open upper
edge. The plastic film bag member is separated from
2 Although U.S. Patent No. 6,042,526 to Baumer is cited to
support the examiner’s position (see page 4 in the answer), it
has not been included in the statement of the appealed 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). Accordingly, we have not considered
the teachings of Baumer in reviewing the merits of the appealed
rejection.
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