Appeal No. 2003-0087 2
Application No. 09/512,164
Appellants’ invention pertains to “a spring applied parking brake assembly for use in
a railway vehicle braking system which is activated by the absence of air in the railway
vehicle braking system” (specification, page 1). A copy of the appealed claims can be
found in the appendix to appellants’ main brief.
The references applied in the final rejection are:
Ryburn et al. (Ryburn) 3,799,297 Mar. 26, 1974
Fontaine 3,842,950 Oct. 22, 1974
Graham 5,154,491 Oct. 13, 1992
Pierce et al. (Pierce) 5,353,688 Oct. 11, 1994
The following rejections under 35 U.S.C. § 103(a) are before us for review:1
(1) Claims 1-5, 8 and 12-17, rejected as being unpatentable over Fontaine in view
of Pierce.2
(2) Claims 6 and 7, rejected as being unpatentable over Fontaine in view of Pierce,
and further in view of Ryburn.
1In the final rejection, claims 1-8 and 12-18 were also rejected under 35 U.S.C.
§ 112, second paragraph. Since these claims have been amended subsequent to final
rejection in such a manner so as to apparently overcome the examiner’s criticism
thereof, and since no mention of this rejection has been made by the examiner in the
answer, we presume that the examiner has withdrawn the final rejection of claims 1-8
and 12-18 on this ground. Ex parte Emm, 118 USPQ 180, 181 (Bd. App. 1957).
2On page 7 of the answer, the examiner also referred to US Patents 3,983,966
and 3,955,370 in the explanation of this rejection, but these patents have been given no
consideration since they were not positively included in the statement of the rejection.
Ex parte Raske, 28 USPQ2d 1304, 1305 (Bd. Pat. App. & Int. 1993).
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