Appeal No. 2004-1227
Application No. 09/940,311
guide plates located outside the row of link plates in the
width direction of the chain, each of the guide plates having a
flat back face formed on one side thereof and a pair of pin-
accommodation holes formed therein, each of the pin-accommodation
holes of each of the guide plates and each of the pin-
accommodation holes of each of the link plates receiving one of
the connecting pins, said connecting pins extending through holes
in the link plates, and being press-fit only in said pin-
accommodation holes of the guide plates.
The prior art set forth below is relied upon by the examiner
as evidence of obviousness:
Tada et al. (Tada) 5,803,854 Sep. 8, 1998
The admitted prior art shown in Figures 20 and 21 of appellants’
drawing
Claims 1 and 2 stand rejected under 35 U.S.C. § 103(a) as
being unpatentable over the admitted prior art of Figures 20
and 21 of the appellants’ drawing in view of Tada.1
1 In the paragraph bridging pages 4 and 5 of the answer, the
examiner has relied on two prior art references as support for
his obviousness conclusion even though these references were not
positively included in the examiner’s statement of the rejection
before us. It is well settled that, where a reference is relied
on to support a rejection, whether or not in a minor capacity,
the reference should be positively included in the statement of
the rejection. See In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ
406, 407 n.3. Also see the Manual of Patent Examining Procedure
(MPEP) § 706.02 (J) (Rev. 1, Feb. 2003). Under these
circumstances, we will not consider these references in our
assessment of the Section 103 rejection advanced on this appeal.
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