Appeal No. 2004-1246
Application No. 09/960,948
appeal as to these claims is dismissed, leaving for our
consideration only the examiner’s final rejection of claims 1-3,
5, 6, 8, 10, 12-14, 16, 17 and 19.
Appellant’s invention pertains to the combination of a
container and applicator. A further understanding of the invention
can be derived from a reading of independent claim 1, which appears
in the appendix to appellant’s main brief.
The references applied in the final rejection are:1
Funcke 1,062,961 May 27, 1913
Kemmerer 5,595,198 Jan. 21, 1997
Beals et al. 6,298,516 Oct. 9, 2001
(Beals)
Claims 1-3, 5, 6, 8, 10, 12-14, 16, 17 and 19 stand rejected
under 35 U.S.C. § 103(a) as being unpatentable over Funcke in view
of Beals.
1On page 9 of the answer, the examiner has mentioned U.S.
No. Patent 5,826,741 to Dumler that purportedly shows a brush
having a shaft with bristles extending substantially in the same
direction as the longitudinal axis of the shaft, but 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 the rejection.”).
2
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