Appeal No. 2000-1651
Application No. 08/871,923
disclosed by Burke in that, inter alia, the claimed lower and
upper longitudinal members each comprise a metal tube "of
circular cross-section," whereas the lower and upper
longitudinal hollow members 10, 12, 22, 24 of Burke each are
disclosed as having a rectangular cross-section. The examiner
takes the position that (answer, page 6):
It would have been an obvious matter of design
choice to have modified Burke in view of Dooley to
have made the upper and lower member comprising a
metal tube having a circular cross section since
such a modification is merely a change in shape and
is generally recognized as being within the level of
one skilled in the art. In re Dailey et al., [357
F.2d 669, 672-73,] 149 USPQ 47[,50 (CCPA 1966)].
After fully considering the record in light of the
arguments presented in appellant's brief and reply brief, and
in the examiner's answer, we conclude that the rejection is
not well taken.
In the Dailey case cited by the examiner, the Court held
the claimed device to be obvious over a patent to Matzen,
stating (357 F.2d at 672-73, 149 USPQ at 50):
Appellants have presented no argument which
convinces us that the particular
configuration of their container is
significant or is anything more than one of
numerous configurations a person of
ordinary skill in the art would find
3
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007