Appeal No. 2003-2058
Application No. 09/407,278
Examination1), [sic] Engwall would not be a [prior art]
reference” (reply brief, page 3). We recognize that Engwall may
be avoided as prior art under § 103(c) under the circumstances
explained in MPEP §§ 706.02(l)(1) through 706.02(l)(3).
Nevertheless, the fact remains that such circumstances do not
presently exist in the application before us on this appeal.
Thus, the Engwall patent is available as prior art with respect
to the subject matter defined by the appealed claims of this
application.
For the reasons set forth above and in the answer, we hereby
sustain the examiner’s section 103 rejection of all appealed
claims as being unpatentable over Engwall in view of Carver.
The decision of the examiner is affirmed.
1 As a matter of clarification, the appellants are
unquestionably incorrect in believing that a Request for
Continued Examination under 37 CFR § 1.114 would somehow avoid
Engwall as a prior art reference. See the MPEP at
§ 706.02(l)(1), particularly the last full paragraph in the right
hand column on page 700-50.
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