Appeal 2007-0142
Application 10/636,964
The Examiner must provide evidence to support allegations of
obviousness. In re Lee, 277 F.3d 1338, 1343, 61 USPQ2d 1430, 1434 (Fed.
Cir. 2002)
ANALYSIS
I.
Stahlecker describes a paraffin body that comprises projection tips
(28A) that are inserted into the paraffin body. The projection tips (28A)
extend into the soft cylindrical paraffin body displacing the paraffin from
these areas to create a connection between the carrier (28) and the paraffin
body. In the spinning machine of Stahlecker, the waxing of yarn is
performed by placing the yarn against the front surface of the paraffin body
(5). The paraffin body is worn down towards the projection tips (28A). As
such, it is apparent that the displaced paraffin voids created by the projection
tips (28A) would be reached before the second end of the paraffin and the
carrier (28) and provide a visual indicator that the end of the paraffin is near.
The structure of the paraffin containing the projection tips is the same as the
claimed paraffin having a wear indicator/taphole. The projection tips of
Stahlecker are not part of the paraffin body. However, these projection tips
create voids in the paraffin body, which are the same as the claimed
invention. Thus we uphold the Examiner’s anticipation rejection.
II.
The mere fact that the prior art could be modified as proposed by the
Examiner is not sufficient to establish a prima facie case of obviousness.
See In re Fritch, 972 F.2d at 1266, 23 USPQ2d at 1783-84. The Examiner
must explain why the prior art would have suggested to one of ordinary skill
in the art the desirability of the modification. The Examiner has not
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