Appeal No. 96-3332
Application 08/321,025
of claims 1 through 4, 7 through 9, 24, and 25 on page 3 in
the main answer (Paper No. 9), the examiner’s determination of
obviousness is based upon a conclusion unsupported by factual
evidence. The Mitchell document (U.S. Patent No. 5,354,588),
cited by appellants in the specification (page 7), simply
addresses very fine perforations or die cuts (column 3, lines
42 through 48), indicated by cut lines 37 in Fig. 3, without
any perceived mention of a cut to tie ratio, as now claimed.
A rejection under 35 U.S.C. § 103 must rest on a factual
basis. See In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173,
178 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968). The
examiner’s rejection lacks such a basis and, therefore, must
be reversed.
The rejection of dependent claims 5, 6, 10, 22, and 23
under 35 U.S.C. § 103 is likewise reversed since,
notwithstanding the teaching of incisions 8 at the edge of a
tape, the Cohausz document does not overcome the deficiency of
the Mitchell reference highlighted above.
REMAND TO THE EXAMINER
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