Appeal No. 2001-1803
Application No. 09/087,775
No. 12, page 6) (emphasis added):
Claims 28 and 29 are rejected under 35 U.S.C. 103(a) as being
unpatentable over Borichevsky. Borichevsky shows the claimed platform
[sic: stool] with the claimed structure to allow offset stacking. It would have
been obvious to one of ordinary skill in the art at the time the invention was
made to provide additional of [sic] Borichevsky's platform and to stack same
as claimed, would have been an obvious mechanical expedient, as the
examiner takes official notice that such alternate stacking of articles to
minimize space and prevent tipping is a conventional practice.
In a footnote on page 4 of the reply brief, appellant contends that the taking of
official notice was presented for the first time in the reply brief. This contention is incorrect,
as is evident from the foregoing quotation from Paper No. 12.
As for claim 28, appellant argues on pages 4 and 5 of the reply brief (under “Issue
E”) that claim 28 is patentable over Borichevsky notwithstanding the official notice
because:
claim 28 is directed to a stack of step stools that are stacked with an offset
in a sequentially alternating manner. Step stools with this particular
stackability property are a much narrower concept that [sic: than] the
Examiner's broad statement about a method of stacking articles.
We agree with this argument. Even though the broad idea of an alternatively
stacked stack of articles may be conventional, as per the official notice taken by the
examiner, we do not consider that it would have been obvious therefrom to create a stack
of the Borichevsky stools “offset in a sequentially alternating manner,” as claimed.
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