Appeal No.95-2807
Application 07/944,653
does not cover the magnetic gap. However, unlike appealed claim
5, claims 3 and 4 do not require the pad to press the tape
against the head portion containing the magnetic gap. For these
reasons we will also sustain the examiner’s § 103 rejection of
claims 3 and 4.
We cannot, however, sustain the § 103 rejection of appealed
claims 5 and 6. In contrast to the invention defined in claim 5,
Toshimitsu expressly teaches the art to locate the pad remotely
from the head portion containing the offset magnetic gap 2a as
shown, for example, in Figure 3 of Toshimitsu’s drawings so that
the pressure exerted by the pad is not applied directly over the
offset gap to avoid the problems discussed on pages 2 and 3 of
the accompanying translation of the Toshimitsu reference. As
such, the teachings of Toshimitsu points away from, not toward,
the invention defined in appealed claim 5. The examiner’s
speculative reason why one of ordinary skill in the art would
ignore this express teaching in Toshimitsu lacks the requisite
factual basis to support a conclusion of obviousness. See In re
Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 178 (CCPA 1967).
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