Appeal No. 2003-0601 Page 4
Application No. 09/470,748
The false bottom C of Kenworthy, while having elongated members supporting glassware, like
Appellant’s mat, does not serve the same purpose as the partitions of Gray. In Gray, the dishes
and glasses lean against the partitions; they are not set on top. Neither reference provides a
reason, suggestion, or motivation for modifying partitions 3 of Gray in the manner advanced by
the Examiner.
In the Examiner’s response to Appellant’s arguments, the Examiner makes a further
finding that a large glass with a base diameter larger than the distance between the tops of
partitions 3 could be supported in a stable upright position on members 3 of Gray (Answer, p. 4).
This finding seems to imply that partitions 3 are of a structure which meets the requirements of
claims 1 and 13. We disagree. Again, the claims are directed to bar rail mats. The wording of
the claim indicates a structure of lower profile with more closely spaced members than taught by
Gray.
Lastly, we note that the Examiner cites three additional references in the Response to
Argument section of the Answer. The Examiner indicates that these references are “not relied
upon,” but then discusses what they teach (Answer, p. 3). We fail to see why the Examiner
discusses these references unless the examiner is relying upon them in some capacity. Where a
reference is relied on to support a rejection, no matter how minor in capacity, there would appear
to be no excuse for not positively including the reference in the statement of rejection. In re
Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970). Because these references
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