Appeal 2007-1268
Application 10/177,845
correctly found that it was not sufficient to remove Ohkado as prior art under
35 U.S.C. § 102(a) (Finding of Fact 12).
Appellants also complain that:
The Examiner has now recharacterized Ohkado as
prior art under 35 U.S.C. § 102(a) on pages 6-7 in
Examiner's Answer. As noted above, Ohkado was
originally cited as prior art under 35 U.S.C.
§ 102(e). Once Examiner rejected Claims 1-21
under 35 U.S.C. § 103(a), Appellants relied on the
original citation of Ohkado as prior art under 35
U.S.C. § 102(e) to disqualify Ohkado under 35
U.S.C. 5 103(c). Now on Appeal, Examiner is
backtracking on his original position and
characterizing Ohkado as prior art under 35 U.S.C.
§ 102(a). Had Examiner cited Ohkado as prior art
under 35 U.S.C. § 102(a) in the original Office
Action dated October 19, 2005, Appellants would
have submitted ample evidence to swear back of
Ohkado. It is difficult for Appellants to predict
what Examiner will decide next about Ohkado, and
Appellants therefore submit that Ohkado should be
considered an ineligible reference due to
Appellants reliance on Examiner's original
characterization of Ohkado as prior art under 35
U.S.C. § 102(e) and Appellants' timely submission
of a declaration meeting the requirements of 37
CFR § 1.132.
(Reply Brief 3.)
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