Appeal No. 2003-0132
Application 09/741,356
The sole rejection on appeal is set forth on page 4 of the
answer as follows:
Claims 1-8 and 9-17 are rejected under the judicially
created doctrine of obviousness-type double patenting as
being unpatentable over claims 10-14 and 1-6 of U.S. Patent
No. 5,992,686. Although the conflicting claims are not
identical, they are not patentably distinct from each other
because the inclusion of structures and limitations not
found in claims 10-14 and 1-6 of U.S. Patent No. 5,992,686
as compared with claims 1-8 and 9-17 of the subject
application are conventional and well know in the dispensing
art. It therefore would have been obvious to one having
ordinary skill in the art to have included these structures
and limitations in order to obtain the benefit of their
associated function as is old and well known in the art.
Of particular interest here is the fact that the Suh patent noted
above is not set forth or specifically relied upon in the
rejection as stated by the examiner. However, it appears that
the examiner has, in the “Response to Argument” section of the
answer, relied upon this patent. As noted by the Court of
Customs and Patent Appeals in In re Hoch, 428 F.2d 1341, 1342
n.3, 166 USPQ 406, 407 (CCPA 1970), where a reference is relied
upon to support a rejection, whether or not in a minor capacity,
there would appear to be no excuse for not positively including
the reference in the statement of the rejection.
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