Appeal No. 1998-0091
Application No. 08/404,054
short-circuit problem in the Bell device. Neither of Bell 5
and Hegner identifies short-circuiting of the electrodes as a
problem. In fact, Bell, as already noted, describes bottoming
out under high overload feature (which inherently results in a
short circuit) as advantageous because it avoids damage to the
sensor. If the examiner's position is that the artisan
nevertheless would have considered the short-circuiting that
inherently occurs in Bell to be a problem, the rejection
should so state and explain why. See In re Bozek, 416 F.2d
1385, 1390, 163 USPQ 545, 549 (CCPA 1969) (a determination of
obviousness may be based on the "common knowledge and common
sense of the person of ordinary skill without any specific
hint or suggestion in a particular reference"). On the other
hand, if the examiner's position is that appellants'
description of the short-circuit problem at page 2, lines 23-
32 of their specification constitutes an admission that short-
5To the extent, if any, the examiner is relying on
Hegner's suggestion of using the protective and glass layers
to diminish surface reduction problems, the rejection fails
because Bell's device is not subject to such problems, as it
is not made using a high-vacuum, high-temperature brazing
technique.
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