Appeal No. 2002-2050
Application No. 08/973,019
our reliance on Elton '077 constitutes a new ground of rejection,
which appellant asserts (Request, page 3) is "prejudicial to
Appellants [sic] and a clear violation of due process
requirements."
As pointed out at pages 4-5 of our April 16, 2003 decision,
appellant referenced Elton '077 first. Appellant directed our
attention to Mr. Aabo's January 21, 2002 declaration which in
turn, starting at page 5, discussed Elton '077 at length
regarding the characteristics of the materials of Elton '565.
Appellant (January 27, 2003 Request for Rehearing, pages 4-7)
asserted that we disregarded the declaration. Thus, appellant
clearly considered and even relied upon Elton '077, and our
dependence upon Elton '077 was in response to appellant's
reliance thereon.
Further, as Elton '077 was incorporated by reference in
Elton '565 for the method of making and characteristics of the
material in question, the discussion of the method of making and
characteristics of the material are a part of Elton '565, which
was named in the statement of the rejection. Consequently, our
reliance upon Elton '077 does not constitute a new ground of
rejection, and there has been no violation of due process
requirements.
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