Appeal No. 1998-2358 Page 5
Application No. 08/396,243
Rejection (1):
Considering first the rejection of claims 1 and 10, the
appellants note that (1) claim requires the tines to be
inclined with respect to the vertical in such a manner that the
tine free ends form the lowest portion of the top surface
thereof and (2) the reason for this arrangement is that the
stacker is designed to operate with a cart having tines.
Thereafter, the appellants urge that the examiner's proposed
modification "would either render Cardenas inoperable for
performing its intended function, or less operable" (brief,
page 6). The brief also states that:
The Breski et al reference is totally irrelevant
to the claimed invention. There is nothing about
Breski et al that would teach one of ordinary skill
in the art that he or she should go specifically
against the teachings of Cardenas and instead of
providing the tines tilted in the manner illustrated
in the Cardenas' drawings in order to hold the forms
in place should tilt [sic] the tines downwardly. The
fact that Breski et al may for some obscure reason
totally irrelevant to Cardenas be moved into a
position where the shelf 19 can be pivoted about pins
41,42 to adjust the backward tilt angle (see column
3, lines 18-25) does not provide any motivation for
one of ordinary skill in the art to provide a base
with supports for Cardenas so that the tines and the
side walls are inclined with respect to the vertical
more than two degrees and tilted in a second
dimension so the free ends of the tines are
substantially the lowest portion of the top surfaces.
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