Appeal No. 2003-058
Application 09/390,190
Claims 19, 20 and 23 through 33 stand rejected under 35
U.S.C. § 103(a) as being unpatentable over Malin in view of
Leibinger and Voeller.
Claim 21 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Malin in view of Leibinger, Voeller and Runo.
Claim 22 stands rejected under 35 U.S.C. § 103(a) as being
unpatentable over Malin in view of Leibinger, Voeller and Doede.
Attention is directed to the appellants’ main and reply
briefs (Paper Nos. 16 and 19) and to the final rejection and
examiner’s answer (Paper Nos. 12 and 17) for the respective
positions of the appellants and examiner regarding the merits of
these rejections.3
DISCUSSION
Malin, the examiner’s primary reference, discloses a
vertical form, fill and seal machine for manufacturing plastic
3 In the final rejection, the examiner inadvertently
rejected claim 13 with claim 2 rather than with parent claim 8.
As this error was pointed out by the examiner in the advisory
action dated December 13, 2001 (Paper No. 14) before the appeal
was taken, the appellants’ contention in the reply brief (see
page 2) that the correction effected in the answer constitutes an
impermissible new ground of rejection is somewhat disingenuous.
In any event, the propriety of the examiner’s corrective action
is reviewable by petition to the Director rather than by appeal
to this Board, and hence will not be further addressed in this
decision.
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