Appeal No. 96-3919
Application 08/224,163
In response, appellant states on page 4 of the brief that
“[he] does not contest the formal nature of this rejection” and
that the terms in question were intended to be “the arm” and “the
blade.” Appellant further offers to make such amendments to the
claims, if required, upon resolution of this appeal.
Since appellant has not pointed out how the examiner has
erred in the rejection of claims 12 and 13 under 35 U.S.C. § 112,
second paragraph, and has in effect acquiesced to the rejection,
we are constrained to sustain this rejection.
The 35 U.S.C. § 103 Rejection
In rejecting the appealed claims under 35 U.S.C. § 103, the
examiner states:
British Patent #8626 discloses substantially similar
structure [as appellant], see Figure 2. It is noted
that using the blade portion to mark is merely intended
use . . . and does not structurally distinguish over
the art . . . . The German Patent discloses using the
blade portion for marking, while Niedharedt [sic] et al
discloses a ball point and highlight marker. It would
have been obvious to a mechanic with ordinary skill in
the art to use these teachings. The motivation is
provided by the references. [answer, page 4]
In the “Response to argument” section of the answer, the
examiner further states:
The German Patent clearly discloses a blade
similar to appellant’s in Figures [sic] 2 and Figure 6.
Figure 6 additionally discloses marking pages with such
a blade. It would have been obvious . . . to
substitute such a blade to [sic] the primary reference.
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