Appeal 2007-1195
Application 10/381,340
gable-shape in cross section as disclosed by Hauptmann in order to increase
ripping power of the chisel” (Id.).
The issue before us is whether the examiner erred in rejecting the claimed
subject matter under §§ 102 and 103.
FINDINGS OF FACT
We find that the following enumerated findings are supported by at least a
preponderance of the evidence. Ethicon, Inc. v. Quigg, 849 F.2d 1422, 1427,
7 USPQ2d 1152, 1156 (Fed. Cir. 1988) (explaining the general evidentiary
standard for proceedings before the Office).
Jenny discloses a chisel for a power hammer comprising a head 1, having a
main lip 2, disposed transversely to a chisel longitudinal axis, a front and rear
striking faces, one side connecting the striking faces, and a shank 3 attached to the
chisel head 1 having a means for attaching the chisel to a power driven hammer.
Jenny also discloses a side lip on the side face wherein the side lip merges with the
front lip.
The Examiner states that the side lips of Jenny having cutting edges thereon.
The Examiner has provided a drawing purporting to illustrate the cutting edges.
We agree that this drawing is one possible configuration of the tool of Jenny which
is shown only in elevation, e.g., Figure 1, and plan, e.g., Figure 2. However, the
Appellant has provided two other interpretations of the shape of the tool of Jenny
equally consistent with the Figures of Jenny. The burden of proof with respect to
the Examiner’s rejection is by a preponderance of the evidence. In order to satisfy
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