Appeal No. 2004-0149
Application No. 09/803,612
The examiner relies upon the following references as support
for the rejections on appeal:
Appel et al. (Appel) 6,242,409 Jun. 05, 2001
(filed Sep. 01, 1999)
Feringa et al. (WO ‘628) WO 95/34628 Dec. 21, 1995
(published International Application)
Hermant et al. (WO ‘787) WO 97/48787 Dec. 24, 1997
(published International Application)
Claims 1, 2, 6-14 and 16 stand rejected under 35 U.S.C.
§ 103(a) as unpatentable over WO ‘628 or WO ‘787 (Answer, page 3).
Claims 1-14 and 16 stand rejected under 35 U.S.C. § 102(e) as
anticipated by Appel (id.).1 We affirm all of the rejections on
1All of the rejections on appeal are stated “as set forth in
prior Office Action, Paper No. 17.” Answer, page 3. However,
the final rejection, as set forth in Paper No. 17 dated Oct. 2,
2002, recites the rejections over WO ‘628, WO ‘787, and Appel but
presents findings from Racherla (U.S. Patent No. 6,074,437). See
Paper No. 17, pages 4-5. The examiner had previously stated that
the rejections under sections 102 and 103 over Racherla “have
been withdrawn.” Paper No. 17, page 2. Furthermore, the
examiner repeats the “withdrawn” rejection of claims 9 and 10
under section 103(a) over Racherla on page 5 of Paper No. 17.
Appellants presented these contradictions to the examiner in
their response dated Dec. 9, 2002, Paper No. 18. In the Advisory
Action dated Dec. 23, 2002, Paper No. 19, the examiner clarified
the final Office action by stating that all rejections over
Racherla have been withdrawn. Appellants clearly have responded
to the rejections the examiner meant to present in the final
Office action (Brief, page 5, part VI). Therefore we consider
the rejections presented above as the rejections on appeal, and
consider all rejections based on Racherla as withdrawn. We also
consider the examiner’s factual findings as set forth in Paper
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