Appeal No. 2002-2227 Page 2
Application No. 09/522,545
BACKGROUND
The appellants’ invention relates to an apparatus for automatically leveling a
vehicle. Claim 24 appears in the appendix to the Brief.
The prior art references of record relied upon by the examiner in rejecting the
appealed claims are:
Hamilton 4,913,458 Apr. 3, 1990
Fukumoto 5,580,095 Dec. 3, 1996
Claim 24 stands rejected under 35 U.S.C. § 103 as being unpatentable over
Fukumoto in view of Hamilton.1
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellants regarding the above-noted rejection, we make reference to the Answer
(Paper No. 12) and the final rejection (Paper No. 6) for the examiner's complete
reasoning in support of the rejection, and to the Brief (Paper No. 11) and Reply Brief
(Paper No. 14) for the appellants’ arguments thereagainst.
OPINION
1On page 9 of the Answer the examiner asserts, for the first time, “upon further review of the
Hamilton Patent, Examiner has identified Hamilton to be a straight 102 rejection over the Applicant’s claim
24.” 37 CFR 1.193(a)(2) prohibits the examiner from entering a new ground of rejection in the Answer
except under certain circumstances, which are not present in the instant situation. Therefore, we shall
consider the quoted statement regarding anticipation to be a gratuitous comment by the examiner, and not
a ground of rejection.
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