Appeal No. 96-1874
Application 08/215,467
cover out of alignment with the longitudinal axis of the cover
is pure speculation on the part of the examiner. There is no
indication that the Haskins cover possesses this property, and
we agree with appellant that the Figure 5 embodiment of
Haskins suggests that such a property is not intended for the
Haskins cover. We are not inclined to dispense with an
appropriate showing of evidence where the examiner’s reliance
on inherency does not have clear factual support in the
record.
With respect to the question of the loop being of
elastomeric material, the examiner has again failed to
properly address the question of obviousness. The appropriate
question for review should be whether it would have been
obvious to the artisan to use a loop made of elastomeric
material with the Haskins cover. Instead, this question is
left unaddressed by both the examiner and appellant.
The focus on the elasticity of the material is
misplaced. The claim recites that the loop is made from an
elastomeric
material. An elastomer is a synthetic rubber. Thus, the
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