Appeal No. 2001-1077
Application No. 09/051,506
evidence. The court has also recently expanded their reasoning on
this topic in In re Thrift, 298 F. 3d 1357, 1363, 63 USPQ2d 2002,
2008 (Fed. Cir. 2002).
In view of the above discussion, since all of the claim
limitations are not present in the disclosure of the applied prior
art reference, we do not sustain the Examiner’s 35 U.S.C. § 102(b)
rejection of independent claim 9, nor of claims 10-17 dependent
thereon, based on Schmiedel.
Turning to the Examiner’s separate 35 U.S.C. § 102(b)
rejection of independent claim 9, and claims 10-17 dependent
thereon, based on Lemmer, we do not sustain this rejection as well.
In addressing the magnet supporting strip feature of appealed
independent claim 9, the Examiner (Answer, page 5) directs
attention to the mounting plate 31 in Lemmer. As with the
rejection based on Schmiedel, the Examiner invokes the left-right
asymmetry of Lemmer’s magnetic chamber base as a basis for
concluding that the first and second magnet supporting areas have
differing elastic resiliency. For all of the reasons discussed
supra with respect to Schmiedel, however, we find no evidence
presented by the Examiner that would support any such conclusion
with respect to the disclosure of Lemmer.
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