Appeal No. 2000-1630
Application No. 09/085,540
among examiners that they must state clearly
and specifically any objections (the prima
facie case) to patentability, and give the
applicant fair opportunity to meet those
objections with evidence and argument. To
that extent the concept serves to level the
playing field and reduces the likelihood of
administrative arbitrariness.
In the present instance, in both the final rejection (Paper
No. 7, page 3) and the answer (Paper No. 10, page 4), the
examiner, in rejecting claims 4, 10 and 12 under 35 U.S.C. §
102(b), has merely stated that the claims are rejected “as being
clearly anticipated by . . . Moran” without any further
elaboration in either office action of precisely how Moran meets
the specific limitations of the rejected claims. In particular,
the examiner has not addressed appellant’s argument on page 8 of
the brief that the structure of Moran (1) is not a storm shelter
for placement in the ground, and (2) is missing the elements of
a hollow chamber because Moran includes a breaker bar extending
diametrically through the bin. In addition, the examiner has
not explained, and it is not clear to us, how Moran satisfies
the requirement of claim 12 that the upright hollow member
“ha[s] a height and diameter sufficient to permit at least one
person to seek shelter therein,” notwithstanding that Moran’s
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