Appeal No. 2001-1078 Page 7
Application No. 08/750,910
teachings of Dunn is correct, such a modification of Blok does
not arrive at the claimed invention since such a plant cube
would lack a plurality of sublayers connected by bends (the
bend limitation) as pointed out by the appellants (brief, pp.
5-7; reply brief, pp. 2-3). In that regard, the critical
issue for the resolution of the question of obviousness, as 35
U.S.C. § 103 makes plain on its face, is whether the invention
as a whole would have been obvious to one of ordinary skill in
the art at the time the invention was made. Thus, in this
case, the examiner's blatant dismissal of the bend limitation
because the appellants have not established criticality
(answer, pp. 3-4) is without merit. Additionally, the
examiner's position (answer, p. 4) that the strip shown in
Figure 6 prior to being cut is considered to be a cube is, in
our view, sheer speculation without any support in the
disclosure of Blok.
Since the examiner has not set forth a prima facie case
of obviousness for the reasons set forth above, the decision
of the examiner to reject claim 1, and claims 2, 3 and 7
dependent thereon, under 35 U.S.C. § 103 is reversed.
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