Appeal No. 2006-0305 4
Application No. 10/370,545
2005) for the respective positions of the appellants and examiner
regarding the merits of these rejections.1
DISCUSSION
I. The 35 U.S.C. § 103(a) rejection of claims 1 and 4-6 as being unpatentable over
Merritt in view of Jones and Davis
Merritt discloses a device for cleaning the waste or drain pipes of slop sinks,
kitchen sinks, washbowls, bathtubs, stationary washtubs, and the like (see page 1, lines
1 On pages 7, 12 and 14 in the answer, the examiner discusses U.S.
Patent No. 2,992,437 and/or Reissue Patent No. 25,175 in an effort to support
the appealed rejections. These references, however, do not appear in the
statement of either rejection. 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. See In
re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407 n.3 (CCPA 1970), and MPEP
§ 706.02(j). Accordingly, we have not considered the foregoing references in
reviewing the merits of the appealed rejections.
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