Appeal No. 2004-0413
Application No. 09/752,301
independent claim on appeal, which appears in the appendix to
appellants’ main brief.
The references applied by the examiner in the final rejection
are:1
Mager 3,792,742 Feb. 19, 1974
Miner 3,797,600 Mar. 19, 1974
Yuki et al. 6,065,555 May 23, 2000
Claims 1, 2 and 4 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Yuki in view of Mager.
Claims 3 and 5-8 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over Yuki in view of Mager and further in view
of Miner.
1On page 7 of the answer, the examiner has mentioned US
patent 5,633,544 to Toida which purportedly “suggests the
desirability of replacing a wheel driven by an external motor
with a wheel in which the motor is contained within the wheel hub
itself . . . .” This patent has been given no consideration
since it has not been listed among the references relied upon,
and since it has not been included in the statement of either of
the rejections. Ex parte Raske, 28 USPQ2d 1304, 1304-05 (Bd.
Pat. App. & Int. 1993). Compare In re Hoch, 428 F.2d 1341, 1342
n.3, 166 USPQ 406, 407 n.3 (CCPA 1970), cited in Section
706.02(j), Manual of Patent Examining Procedure (“Where a
reference is relied on 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
rejection.”).
2
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