Appeal No. 97-4078
Application No. 08/232,947
col. 1, lines 44-45.) These extensions ending with nubs, 50 and 52, would act as levers
rather than the asserted levers, 60 and 62, as asserted by the Examiner. We do not agree
with the Examiner that "the levers [60 and 62 of Gaudino] inherently provide a moment
arm to open the jaws of the visor secured clip upon pulling them." (See answer at page 3;
emphasis added.) Furthermore, we disagree with the Examiner that it would have been
obvious "in view of Carter-Mann (figure 5) in which the flanges 18 and 20 are similarly
inherently readily manipulable to open the jaws 14, 16. These levers can also be pulled if
so desired so as to separate the jaws by providing a moment arm about the base 12."
(See answer at page 3-4; emphasis added.) We note that the disclosure of Carter-Mann
is silent as to the function of these flanges beyond the support and placement of trash can
liner bags. Appellant argues "the grand fallacy in the Action is the reliance on alleged
inherency to put into the Carter-Mann reference alleged disclosure of levers." (See brief at
page 8.) We agree with appellant, and we do not find that these flanges are intended to
function in the manner asserted by the Examiner. We find that these inherencies asserted
by the Examiner are merely speculation by the Examiner in hindsight reconstruction of
appellant's claimed invention. The Examiner has further elaborated upon the asserted
inherent properties of the flanges/levers without considering the overall teachings of the
Gaudino patent and Carter-Mann patent. The asserted levers of Gaudino, 60 and 62, are
clearly disclosed for retaining pencils, pens or the like (see col 2, lines 1-5) and further
may retain cigars or cigarettes. (See col. 2, lines 9-15.) Both Gaudino and Carter-Mann
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