Appeal 2007-0566
Application 10/446,875
persuasive, as there is no evidence in the record suggesting that the two
recess configuration of Gerry would not perform as well as the conventional
screw element of the APA when subjected to extreme wear and the
Examiner’s stated motivation for the modification is not to improve
performance when subjected to wear. Rather, the Examiner determined that
the modification would have been an obvious substitution of a recognized
equivalent engagement recess configuration.
In light of the above, while Appellant’s arguments do demonstrate
that the Examiner improperly relied upon Brettschneider ‘930 as evidence of
obviousness, Appellant’s arguments do not demonstrate that the subject
matter of claim 1 would not have been obvious over the APA in view of
Gerry. We thus sustain the Examiner’s rejection of claim 1, and claims 2, 6,
9, 11-16, 20-23, 25, 30-32, and 37-42 standing or falling with claim 1, as
being unpatentable over the APA in view of Gerry.1
We also sustain the rejections of claims 3-5, 8, 10, 24, 28, and 29 as
unpatentable over the APA in view of Gerry and Luke, and claims 7, 17-19,
27, and 33-36 as unpatentable over the APA in view of Gerry and Rudolph,
as Appellant has not argued these rejections separately from the rejection of
claim 1 with any reasonable specificity (see In re Nielson, 816 F.2d 1567,
1572, 2 USPQ2d 1525, 1528 (Fed. Cir. 1987)).
1 In affirming a multiple reference rejection under 35 U.S.C. § 103, the
Board may rely on fewer than all of the references relied on by the Examiner
in an obviousness rationale without designating it as a new ground of
rejection. In re Bush, 296 F.2d 491, 496, 131 USPQ 263, 266-67 (CCPA
1966).
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