Appeal No. 2000-2087 Page 4
Application No. 09/039474
disclose or teach a hammer shank having a square cross section and a scored face, a
magnet that is a high energy product expressed as Mega Gauss Oersteds (MGOe), and a
protection ring surrounding the head and the handle at the point of attachment.
We agree with the examiner that it would have been obvious to equip the Palomera
hammer with the claimed asymmetric claws in view of the explicit advantages of such
which are set forth in lines 23-30 of page 1 of Newbrough. However, we find ourselves in
agreement with the appellants that the record does not support the conclusion that three of
the four features mentioned above would have been obvious to one of ordinary skill in the
art.
While the hammerhead disclosed by Palomera has a scored face, it is of circular
shape rather than the square shape required by claim 1. Based on “his [own] skill in the
art,” and relying upon his “[own] experiences and skill in the art” (Answer, page 4), the
examiner holds to his conclusion in the final rejection that making the face of the hammer in
a square shape rather than a round one is merely a matter of design choice,
notwithstanding the advantages of this shape put forward by the appellants and in the face
of a request by the appellants that he provide evidence to support his position. The fact of
the matter is that there is no credible evidence of record which supports the examiner’s
position, and therefore, from our perspective, the conclusion is inescapable that the square
shape is not taught by the applied prior art.
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