Ex Parte Baumann et al - Page 6



                    Appeal No. 2004-2060                                                                                                                                  
                    Application No. 09/891,271                                                                                                                            

                    unit with clutch is optionally removable from the vehicle, are in                                                                                     
                    error.  Notwithstanding that the clutch pedal (14, 79) and the                                                                                        
                    portion of control apparatus (22) associated therewith in Counts                                                                                      
                    may be individually removable from the vehicle, as the examiner                                                                                       
                    appears to so urge on pages 5 and 6 of the answer, the clutch                                                                                         
                    pedal (14, 79) in Counts is not part of any preassembled                                                                                              
                    constructional unit, which constructional unit can be fastened                                                                                        
                    between projecting legs of a mounting plate and is constructed to                                                                                     
                    be optionally removable therefrom as a unit when the vehicle                                                                                          
                    includes an automatic transmission.  Nor do we view the                                                                                               
                    limitations regarding the "preassembled constructional unit" of                                                                                       
                    claims 1, 6 and 9 on appeal as being mere process limitations                                                                                         
                    which, according to the examiner, can be given no patentable                                                                                          
                    weight.  For those reasons, we will not sustain the examiner's                                                                                        
                    rejection of independent claims 1, 6 and 9 under 35 U.S.C.                                                                                            
                    § 102(b) based on Counts, or the rejection of dependent claims 2,                                                                                     
                    3, 7, 8, 10 and 11 under 35 U.S.C. § 102(b).  Thus, the decision                                                                                      
                    of the examiner is reversed.                                                                                                                          





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