Appeal No. 1999-1489
Application No. 08/691,193
As for claim 1, the examiner states the basis of the
rejection as follows (answer, pages 4 and 5):
[F]riction welding is the creation of friction
between two elements until pieces are heated to a
point that allows plastic flow of the metals and then
the pieces are pressed together so as to plastically
deform the metals. Friction welding is recognized as
being a simple and highly efficient method of
attaching similar and nonsimular [sic] metals. The
“melting” welding of Kosik is not specific as to which
type of welding is used to join the drive shaft and
stud. Using friction welding would be efficient since
it is well recognized as a simple and highly efficient
method of attaching similar and nonsimular [sic]
metals. It would have been obvious for one of
ordinary skill at the time the invention was made to
attach the stud of Kosik to the drive shaft by
friction welding since friction welding is well
recognized as a simple and highly efficient method of
attaching similar and nonsimular [sic] metals.
It is fundamental that “The mere fact that the prior art
may be modified in the manner suggested by the Examiner does not
make the modification obvious unless the prior art suggested the
desirability of the modification.” In re Fritch, 972 F.2d 1260,
1266, 23 USPQ2d 1780, 1783-84 (Fed. Cir. 1992). A rejection
based on § 103 must rest on a factual basis, which the PTO has
the duty of supplying, and these facts must be interpreted
without hindsight reconstruction of the invention from the prior
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