Appeal No. 2004-0389 Page 3
Application No. 09/853,339
Claim 1 stands rejected under 35 U.S.C. § 102(b)2 as being anticipated by
Pallinger.
Claim 14 stands rejected under 35 U.S.C. § 103(a) as being unpatentable over
Gschwendtner.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellants regarding the above-noted rejections, we make reference to the answer
(Paper No. 15) for the examiner's complete reasoning in support of the rejections and to
the brief and reply brief (Paper Nos. 14 and 16) for the appellants’ arguments
thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellants’ specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellants and the examiner. As a consequence
of our review, we make the determinations which follow.
Claim 1, the sole independent claim before us on appeal, reads as follows:
1. A support structure assembly for an escalator comprising:
a bottom landing support;
a top landing support; and
2 We note that the Pallinger patent was issued less than one year prior to the filing date of the
present application and thus does not appear to be available as prior art under 35 U.S.C. § 102(b) against
the present application. Nevertheless, as appellants have not challenged the applicability of the Pallinger
patent as prior art under 35 U.S.C. § 102 and as it does appear to qualify as prior art against the present
application under 35 U.S.C. § 102(e), we shall treat this rejection as a rejection under 35 U.S.C. § 102(e).
In light of our reversal of this rejection, infra, appellants do not appear to be prejudiced by this treatment of
the rejection.
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