Appeal No. 2005-2398
Application No. 09/899,029
rendered the subject matter defined by claims 3 through 15, 28,
39 through 42, 45 and 46 obvious within the meaning of 35 U.S.C.
§ 103(a). Accordingly, we affirm the examiner’s decision
rejecting the same under Section 103(a).
With respect to claims 25, 26, 35, 36, 43, 44 and 47, they
are on different footing. We note that the examiner has not
established that a clipper for locking the handle at desired
positions, as recited in claims 35 and 36, is known.6 Nor has
the examiner established that the conventional wheel disc brakes
recited in claims 25, 26, 43, 44 and 47 are known to be used with
wheelbarrows and/or brake cables and lever-type or twist-type
brake control handles.7
Thus, we concur with the appellant that the examiner has not
provided a sufficient factual basis to demonstrate obviousness of
the subject matter defined by claims 25, 26, 35, 36 43, 44 and 47
6 The examiner refers to U.S. Patent 3,950,005 issued Patterson to show obviousness of
employing the claimed clipper in a parking brake means. However, the examiner has not
included Patterson in the statement of rejection. As such, we cannot consider this reference in
the context of the present rejection. In re Hoch, 428 F.2d 1341, 1342 n.3, 166 USPQ 406, 407
n.3 (CCPA 1970)(“[W]here a reference is relied on to support a rejection, whether or not in a
‘minor capacity,’ there would appear to be no excuse for not positively including the reference in
the statement of the rejection.”)
7 The examiner refers to U.S. Patent 5,690,191 issued to Burbank to show obviousness of
using the claimed disc brake with a wheelbarrow. Again, we decline to consider Burbank since
it is not included in the statement of rejection.
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