Appeal 2007-1268
Application 10/177,845
ISSUE
The only issue before us is whether Appellants have shown that
Ohkado is disqualified as a reference by 35 U.S.C. § 103(c) and therefore
the Examiner erred in rejecting the claims under 35 U.S.C. § 103(a).
FINDINGS OF FACT
1. In a non-final office action mailed October 19, 2005 ("Non-Final
Office Action"), the Examiner rejected claims 1-21 under
35 U.S.C. § 102(e) as anticipated by Ohkado. (Non-Final Office
Action 3-5.) The Non-Final Office Action did not reject the claims
under 35 U.S.C. § 102(a) or otherwise mention 35 U.S.C. § 102(a),
even though Ohkado also qualifies as a § 102(a) reference because it
has a publication date of August 23, 2001. (Non-Final Office Action
passim.)
2. In a response to the Non-Final Office Action filed February 20, 2006,
("Response to Non-Final Office Action"), Appellants amended all of
the independent claims (claims 1, 9, and 17) and argued that Ohkado
did not anticipate the claims as amended. (Response to Non-Final
Office Action 3-5, 7-9.)
3. In a Final Office Action mailed May 17, 2006 ("Final Office Action"),
the Examiner entered a new ground of rejection. Specifically, the
Examiner rejected claims 1-21 under 35 U.S.C. § 103(a) as being
obvious over Ohkado and Elliot. (Final Office Action 2-5.)
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