Appeal No. 2006-0009 10
Reexamination Control No. 90/005,589
this reason, the rejection of claim 1 under 35 U.S.C. § 103(a) as being obvious over Anada is
also reversed.
To the extent that the examiner is relying on Van Swam to supplement the teachings of
Anada, Van Swam is not included in the statement of the rejection. Therefore, we decline to
consider the teachings of Van Swam in combination with Anada. See In re Hoch, 428 F.2d
1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970) (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).
Conclusion
The rejection of claim 1 under 35 U.S.C. § 102(b) as anticipated by Van Swam is
reversed. The rejection of claim 1 under 35 U.S.C. § 102(b) as anticipated by or, in the
alternative, under 35 U.S.C. § 103(a) as obvious over Anada is reversed. The rejection of claims
1-4 under 35 U.S.C. § 102(b) as anticipated by Sabol is reversed. The rejection of claims 1-4
under 35 U.S.C. § 103(a) as obvious over Sabol is affirmed.
No time period for taking any subsequent action in connection with this appeal may be
extended under 37 CFR § 1.136(a).
AFFIRMED
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