Appeal No. 96-2724
Application 08/343,201
OPINION
Having carefully considered appellant's specification
and claims, the applied references, and the respective viewpoints
of appellant and the examiner, it is our determination that the
examiner has failed to establish a prima facie case of
obviousness with regard to claims 4 through 7 and 10 on appeal.
Our reasoning for this determination follows. In addition,
pursuant to our authority under 37 CFR § 1.196(b), we have also
decided to enter a new ground of rejection of appealed claims 4
through 7 and 10 under 35 U.S.C. § 112, second paragraph.
Turning first to the examiner's rejection of claims 4,
5 and 10 under 35 U.S.C. § 103, we do not share the examiner's
view that it would have been obvious, absent any suggestion or
incentive recognized in the applied prior art, to merely
eliminate the fluid from the chambers (e.g., 14, 16) of the
display assembly associated with the shoe of Swartz. While it is
true that in In re Karlson, 311 F.2d 581, 584, 136 USPQ 184, 186
(CCPA 1963) the Court stated that
4
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