Appeal No. 2002-1224
Application No. 09/266,927
As the sole argument in support of his nonobviousness position,
the appellant contends that the here rejected claims are
patentable “because the examiner admits, ‘Hagen fails to teach or
suggest the use of a natural sponge...’” (brief, page 14) and
“because, as Examiner points out, Hagen fails to teach or suggest
the use of a natural sponge” (reply brief, page 3). This sole
argument by the appellant is unpersuasive.
The examiner’s above quoted statement “Hagen fails to teach
or suggest the use of a natural sponge” is quite obviously an
erroneous oversight. Instead, the examiner should have expressed
the appealed claim distinction over Hagen by stating “Hagen fails
to teach the use of a natural sponge.” This error by the
examiner is harmless, and the appellant’s attempt to exploit this
error as support for his nonobviousness position can only be
regarded as unsuccessful. In this regard, we point out that the
test for obviousness under section 103 is based upon what the
prior art would have suggested to one with ordinary skill in the
art rather than an inadvertent mis-statement by an examiner.
With the aforementioned test in mind, we share the
examiner’s ultimate conclusion that it would have been obvious
for one with ordinary skill in the art to substitute a natural
sponge for the polyurethane foam used as the paint applying
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