Appeal 2006-2640
Application 10/364,657
The Examiner’s decision is reversed.
Remand
We remand the application to the Examiner for consideration of issues
raised by the record. 37 CFR § 41.50(a)(1) (2005); Manual of Patent
Examining Procedure (MPEP) § 1211 (8th ed., Rev. 3, August 2005).
The Examiner refers to Appellants’ admission that an “inter-wrap
machine” was known at the time the application was filed (Specification 9:2-
6) in responding to argument (Br. 10-11) with respect to the step of “moving
the [crustless, sliced] loaf longitudinally to a packing station” specified in
claim 1, appealed dependent claim 3, and claim 4 (Answer
7 and 8).
We note that Appellants further admit that a “decruster” that can
perform the decrusting step specified in claims 4 and 24 and a “slicer” that
can perform the slicing step in claims 1 and 4 were known at the time the
application was filed (Specification 8:22-26 and 28-30).1
The record, however, does not contain explanation or evidence
establishing that one of ordinary skill in the art with knowledge of these
kinds of machines and armed with the knowledge in the art would have
1 See In re Nomiya, 509 F.2d 566, 571, 184 USPQ 607, 611-12, (CCPA
1975) (“We see no reason why appellants’ representations in their
application should not be accepted at face value as admissions that Figs. 1
and 2 may be considered “prior art” for any purpose, including use as
evidence of obviousness under § 103. By filing an application containing
Figs. 1 and 2, labeled prior art, ipsissimis verbis, and statements explanatory
thereof, appellants have conceded what is to be considered as prior art in
determining obviousness of their improvement.”) (citation omitted).
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