Appeal No. 97-2967
Application 07/908,967
U.S.C. § 103 over Gerszewski in view of Hutton was sustained.
We have carefully considered appellant’s arguments in the request, however, we are not
persuaded that our decision was in error in any respect.
Appellant argues that because Hutton describes an anchor and Gerszewski describes a footing,
the devices of Hutton and Gerszewski are related to non-analogous art. Appellant also argues that
there is no suggestion to combine the teachings of these references. The argument directed to non-
analogous art is not properly before us because it was not previously advanced in appellant’s brief or
reply brief for the examiner’s consideration and is not rebuttal to anything set forth in our decision. See
Ex parte Hindersinn, 177 USPQ 78 (Bd App. 1971). In regard to the suggestion to combine
Gerszewski and Hutton appellant is directed to pages 7 and 8 of our decision. We only add that while
appellant is correct that a footing is a load bearing device which transfers load to the earth, a footing
also anchors a building to the ground and therefore movement of the footing in any direction would act
to destabilize the building. As such, a person of ordinary skill in the art would have been motivated to
form a footing as taught by Hutton to make the footing more resistant to upward movement.
In regard to the asserted long felt need of the claimed footing, appellant argues that the need to
prevent movement of a footing is so well recognized that it should not need further proof.
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