Appeal No. 96-1441
Application 08/096,458
Trevitt has the size and position relationship
between slots and planar surfaces of the sidewalls
which would enable this advantage when applied to
Jenkins. Trevitt is relied upon simply to show that
it is known in the art to structurally provide the
slots extending into the plane of a sidewall
[answer, Paper No. 10, pages 4 and 5].
Claims 1 and 16, the two independent claims on appeal,
define each of the slots in the sidewalls of the claimed liner
as “extending into a plane of the sidewalls away from the
interior” of the associated refrigeration device (claim 1) or
cabinet (claim 16) and as having a limit means for preventing
shelf movement in at least one direction. As implicitly
conceded by the examiner, neither Jenkins nor Trevitt meets
these claim limitations. The examiner’s attempt to overcome
the individual deficiencies of these references in this regard
in the manner explained above is not well taken.
Rejections based on 35 U.S.C. § 103 must rest on a
factual basis. In re Warner, 379 F.2d 1011, 1017, 154 USPQ
173, 177-78 (CCPA 1967). In making such a rejection, the
examiner has the initial duty of supplying the requisite
factual basis and may not, because of doubts that the
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