Appeal No. 2004-2277
Application No. 09/886,760
THE PRIOR ART
The references relied on by the examiner to support the
final rejection are:
Thomas et al. (Thomas) 5,798,828 Aug. 25, 1998
The prior art wafer cassette handling apparatus and method
discussed in the appellants’ specification and depicted in
Figures 1 through 4 of the application drawings (the admitted
prior art).
THE REJECTION
Claims 1 through 5, 7, 9 through 11, 13 and 15 stand
rejected under 35 U.S.C. § 103(a) as being unpatentable over the
admitted prior art in view of Thomas.
Attention is directed to the brief (Paper No. 11) and answer
(Paper No. 12) for the respective positions of the appellants and
examiner regarding the merits of this rejection.1
1 On page 6 in the answer, the examiner refers to an
additional reference, “Computer Control of Machines and Processes
by Bollinger and Duffie,” in apparent support of the appealed
rejection. As this reference is not included in the statement of
the rejection, we have not considered it in reviewing the merits
of the appeal. Where a reference is relied on to support a
rejection, whether or not in a minor capacity, there is no excuse
for not positively including the reference in the statement of
the rejection. In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ
406, 407 n.3 (CCPA 1970) and MPEP § 706.02(j).
3
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