In re Fracalossi

The only rejection made below was for obviousness (35 U.S.C. § 103). The majority affirms the section 103 obviousness rejection because it concludes that there is a “lack of novelty.” However, the statutory language makes clear that “lack of novelty” is not a basis for a section 103 rejection.1 To add a rejection for “lack of novelty” for the first time on appeal would deny appellants administrative due process. See, e.g., In re Waymouth, 486 F.2d 1058, 1061, 179 U.S.P.Q. 627, 629 (C.C.P.A.1973); In re Ark-ley, 59 C.C.P.A. 804, 809, 455 F.2d 586, 589, 172 U.S.P.Q. 524, 527 (1972).…