Appeal 2007-1490
Application 10/707,484
1 be in direct contrast to earlier representations made, without any
2 explanation, is troubling.
3 Moreover, even if the Carroll top and bottom layer assembly
4 constitute an “unfinished panel,” which Applicants argue cannot by itself be
5 a “headliner” as that term is understood in the art, Applicants acknowledge
6 that Carroll describes that the “unfinished panel” can be contained within, or
7 included as part of a headliner (FF 7). According to Applicants, the term
8 “headliner” is known in the art to mean a finished product, e.g., something
9 that is aesthetically pleasing to view. By Applicants’ own admission, the
10 term “headliner” would connote to a skilled artisan a finished product.
11 Thus, Applicants’ argument that Carroll does not describe a “finished
12 product” necessarily unravels. Carroll describes using the assembly within a
13 headliner, which one of ordinary skill in the art would recognize inherently
14 contains all of the necessary structure to make it a “finished product.”
15 Applicants have therefore failed to demonstrate that the Examiner’s rejection
16 was in error.
17 In any event, aesthetics is in the eye of the beholder. The applicant
18 submitted no testimony of any technical witness to the effect that one with
19 ordinary skill in the art would regard a “headliner” as necessarily being a
20 finished panel. Attorney argument does not take the place of evidence
21 lacking in the record. Even an unfinished panel as disclosed in Carroll has
22 all the structural requirements of being a headliner.
23 For the above reasons, we sustain the rejection of claims 12 and 14-21
24 as being anticipated by Carroll.
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