Appeal No. 2002-0206
Application No. 09/121,725
“Patentability report practice (MPEP § 705), has no effect upon,
and does not modify in any way, the practice of restriction, being
designed merely to facilitate the handling of cases in which
restriction cannot properly be required.”
Consequently, the fact that the examiner previously
restricted out oyster shucking claims, even if it were incorrect,
is not persuasive as to the lack of anticipation of claims 6 and 7
by Yasushi.
Fifth, the appellant challenges the use of Cheftal by the
examiner, stating that it is “improper” as Cheftal was not cited
in the rejection and cannot be used in conjunction with Yasushi to
establish anticipation under 35 U.S.C. § 102(b). The appellant
has misapprehended the use of Cheftal in the rejection. Cheftal
was not applied in conjunction with Yasushi to reject claims 6 and
7 under 35 U.S.C. § 102 (b). Rather, Cheftal is used as evidence
to support the position that high pressure processing kills
Vibriones, and this feature of claims 6 and 7 is inherently
present in the Yasushi process. Accordingly, we are not persuaded
by this final argument and we will sustain the rejection of claims
6 and 7 under 35 U.S.C. § 102(b).
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