Appeal No. 1996-1049
Application No. 08/238,681
anything more than one of numerous configurations a person of
ordinary skill in the art would find obvious for the purpose
of providing mating surfaces in the collapsed container” of
the applied reference. See Dailey, 357 F.2d at 672-73, 149
USPQ at 50.
Appellant argues that appellant’s arcuate elements are
significant because they result in a cylindrical bore which
allows for a threaded fastener to be used rather than
Harrison’s square or rectangular fastener which is pushed into
the female connector (brief, page 3). The examiner provides
no reasoning as to why one of ordinary skill in the art would
have considered the difference between Harrison’s
configuration and appellant’s arcuate configuration to be
insignificant such that Harrison’s configuration would have
fairly suggested appellant’s configuration to one of ordinary
skill in the art. The examiner, instead, merely relies upon a
per se rule that mere changes of shape are obvious. As stated
by the Federal Circuit in In re Ochiai, 71 F.3d 1565, 1572, 37
USPQ2d 1127, 1133 (Fed. Cir. 1995), “reliance on per se rules
of obviousness is legally incorrect and must cease.”
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