Appeal No. 2002-0586
Application 08/949,213
principal question in the § 102 rejection is whether the Examiner has established that the
accommodation checking device described in Kaptur is identical to the claimed design
template. We answer this question in the negative.
In comparing the subject matter of appealed claim 1 against the accommodation
checking device disclosed in Kaptur, we find that the Appellants’ claimed design
template represents or simulates the human male in the 95th percentile in weight and
stature, a human male who is 50th percentile in weight and stature or a human female who
is 5th percentile in weight and stature. Also, we find that Kaptur discloses “the specific
device shown represents or simulates the human male in the 50th percentile in weight and
the 90th percentile in stature”. (Col. 5, ll. 40-43). Further, we find the Examiner has not
addressed the percentile in stature of Kaptur’s accommodation device in the Answer.
Thus, we determine that Kaptur’s accommodation device is not the same as the claimed
design template. The 35 U.S.C. § 102(b) rejection is therefore reversed.
The Examiner rejected the claims under 35 U.S.C. § 103(a) as obvious over
Kaptur. However, the Examiner has not provided the proper factual basis to support a
legal conclusion of obviousness as set forth in Graham v. John Deere Co., 383 U.S. 1
(1966). Consequently, the Examiner has not met the initial burden of establishing a
prima facie case of unpatentability under section 103. The 35 U.S.C. § 103(a) rejections
of the claims are therefore reversed.
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