Appeal No. 2003-0589
Application No. 09/564,326
As for the examiner's attempt to rely on U.S. Patent Nos.
5,496,252 and 6,183,590 (final rejection, page 3), we observe
that these patents have not been set forth in the statement of
the § 103 rejection presently before us on appeal. As pointed
out by the Court in In re Hoch, 428 F.2d 1341, 1342, 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.1
Moreover, we note that even taking into account the
examiner's attempt to rely on engineering design choice, Official
Notice, and U.S. Patent Nos. 5,496,252 and 6,183,590, it does not
appear to us that appellant's claimed process for making non-
rectangular zipper closable plastic bags would have been obvious
to one of ordinary skill in the art. In that regard, appellant's
arguments on page 6 of the brief are particularly apropos.
1 In making any future rejection of the type present here,
the examiner would be well served to review the memorandum issued
to the Examining Corps by Deputy Commissioner for Patent
Examination Policy, Steven G. Kunin, entitled "Procedures for
Relying on Facts Which are Not of Record as Common Knowledge or
for Taking Official Notice," dated February 21, 2002.
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