Appeal No. 1999-0652 Page 5
Application No. 08/699,262
From our viewpoint, a "lock pick tool" is any pointed
tool capable of being used to open a lock without a key. The2
examiner has asserted that the retractable tool of Di Stefano
is capable of use as a lock pick (final rejection, page 3, and
answer, page 4). As the Di Stefano tool is elongate and
pointed, and thus capable of insertion into a lock, we find
the examiner's assertion to be reasonable, thus establishing a
prima facie case that the Di Stefano tool is a "lock pick
tool" as claimed. The examiner's assertion in the final
rejection thus shifted the burden to the appellant to show
that the Di Stefano tool did not inherently possess such
capability. See In re Schreiber, 128 F.3d 1473, 1478, 44
USPQ2d 1429, 1432 (Fed. Cir. 1997).
In response, the appellant has merely alleged that the
examiner's assertion is "fiction and fantasy" (brief, page 4),
but has not offered any explanation as to why the pick tool of
Di Stefano is not capable of use in picking locks. We do not
find this allegation persuasive.
A "pick" is defined as "any of several pointed tools or instruments2
for picking" and the verb "to pick" is defined as "to open (a lock) as with a
wire instead of a key, esp. in a stealthy manner" Webster's New World
Dictionary, Third College Edition (Simon & Schuster, Inc. 1988).
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