Appeal No. 97-3194 Page 25
Application No. 08/442,816
The § 103 rejection utilizing Damon in view of Johnson and
Clark
We will not sustain the examiner's rejection of claim 38
under 35 U.S.C. § 103 as being unpatentable over Damon in view
of Johnson and Clark since the examiner has not established a
prima facie case of obviousness. In that regard, it would not
have been obvious in our view to modify Damon to arrive at the
claimed invention absent impermissible hindsight.
Claim 38 requires both (1) the lock housing being
"enclosed in a protective cover" as recited in parent claim
37, and (2) the protective cover comprising "bubble wrap
material" as recited in claim 38. We agree. First, the
examiner's determination that material 17 of Clark is a
"bubble wrap" material is without a proper foundation. In
that regard, Clark describes element 17 as a plastic sleeve
and is shown in Figures 1 and 2 as having an undulating
surface. Thus, it is our opinion that there is an
insufficient evidentiary basis for the examiner to conclude
that sleeve 17 is a "bubble wrap" material since "bubble wrap"
is a well known material. Second, the examiner's implicit
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