Appeal No. 2005-0262
Application No. 10/101,732
relying on Mark's own teachings either from the parent
or the present continuation-in-part. It is submitted
that neither reference can be relied upon a fortiori
the combination of Sven, Mark and Held it [sic, et] al,
fails and claim 6, here on appeal cannot be held
anticipated.
(Page 2 of Brief, penultimate paragraph). Hence, appellant's
sole argument on appeal is that Mark is not of record. The
examiner responds as follows in the paragraph bridging pages 5
and 6 of the Answer:
The applicant argues that the reference
Des. 392,465 issued to Mark is not a prior art.
The examiner acknowledges that the inventor of
Des. 392,465 is the same inventor of the present
application. However, the date of patent of
Des. 392,465 is March 24th, 1998 while the filing date
of the parent application serial number 09/711,305 is
November 14th, 2000. In addition, it is noted that
Des. 392,465 is listed in PTO-892 and mailed with the
Final Rejection to the applicant on April 10th, 2003.
Therefore, Mark is a record in the application serial
number 10/101,732 filed March 21st, 2002.
Our review of the examiner's Final Rejection reveals the
examiner's citation of Mark as a reference in the Final
Rejection. Since appellant has not refuted the examiner's
reasonable position in a Reply Brief or the like, and has not
presented any substantive argument against the propriety of the
examiner's combination of references which factually supports the
conclusion of obviousness, we must sustain the examiner's
rejection. Appellant has furnished no argument, let alone
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