Appeal No. 2004-0061
Application 09/745,762
compartment (50) within which the rollout mat (40) is housed.
Access to the interior compartment (50) and the rollout mat
therein is provided by a separate opening (6) in a wall of the
bag which is created by opening means (36), which may be a
zipper.
Independent claims 23 and 29 are representative of the
subject matter on appeal and a copy of those claims may be found
in the Appendix to appellant’s brief (Paper No. 7).
The sole prior art reference of record relied upon by the
examiner in rejecting the appealed claims1 is:
Shreim 2 061 712 May 20, 1981
(Published UK Patent Application)
1 While the examiner has also listed U.S. Patent No.
4,154,323 to Sneider, on page 3 of the answer, as being “relied
upon in the rejection of claims under appeal,” we note that such
patent is not included in the statement of any rejection on
appeal, or pointed to in the body of any such rejection. The
answer itself, on page 7, expressly notes that the Sneider patent
is “used for a cited reference but not for prior art in the
rejection.” Thus, we will not look to the Sneider patent in our
deliberations in this appeal. In that regard, as pointed out by
the Court in In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406,
407 n.3 (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.
3
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