Appeal No. 1997-0795
Application 08/087,362
The Examiner relies on the following references:
Smith 2,716,151 Aug. 23, 1955
Drewery et al. (Drewery) 4,322,739 Mar. 30, 1982
Claims 35 through 39 and 52 through 55 stand rejected under 35 U.S.C. § 103
as being unpatentable over Smith in view of Drewery.1
Rather than reiterate the arguments of Appellants and the Examiner, reference is
made to the briefs and answer for the respective details thereof.2
OPINION
We will not sustain the rejections of claims 35 through 39 and 52 through 55 under
35 U.S.C. § 103.
The Examiner has failed to set forth a prima facie case. It is the burden of the
Examiner to establish why one having ordinary skill in the art would have been led to the
claimed invention by the express teachings or suggestions found in the prior art, or by
implications contained in such teachings or suggestions. In re Sernaker, 702 F.2d 989,
995, 217, USPQ 1, 6 (Fed. Cir. 1983). "Additionally, when determining
We note on page 3 of the Examiner's answer that the Examiner states that the rejection is based1
upon Smith in view of Wilkinson. However, this appears to be a mistake since the remaining pages 4 and 5
set forth a rejection of the claims as being unpatentable over Smith in view of Drewery.
2 Appellants filed an appeal brief on November 30, 1995, Appellants filed a reply brief on July 3,
1996. The Examiner mailed a letter on September 19, 1996 stating that the reply has been entered and
considered but no further response by the Examiner is deemed necessary.
3
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