Appeal No. 2002-2282
Application 09/212,038
review, find that we cannot sustain the rejection of appealed claims 3, 10/3, 11/3, 14/3 and 15/32
under 35 U.S.C. § 103(a) as being unpatentable over Kempler et al. (Kempler).3
We agree with appellants for the reasons pointed out at pages 2-5 of the brief, that the
examiner has failed to make out a prima facie case of obviousness. We add only that an
inoperative rotor would obviously render Kempler’s invention inoperative, and the examiner has
not established otherwise. See generally, In re Gordon, 733 F.2d 900, 902, 221 USPQ 1125,
1127 (Fed. Cir. 1984), and cases cited therein.
The examiner’s decision is reversed.
Reversed
BRADLEY R. GARRIS )
Administrative Patent Judge )
)
)
)
CHARLES F. WARREN ) BOARD OF PATENT
Administrative Patent Judge ) APPEALS AND
) INTERFERENCES
)
)
BEVERLY A. PAWLIKOWSKI )
Administrative Patent Judge )
2 See the amendment after final of September 26, 2001 (Paper No. 12) in which claims 2 and 3
were amended and claim 4 was canceled. Claims 1, 5, 6, 9 and 16 through 22 are also of record
and have been withdrawn from consideration by the examiner under 37 CFR § 1.142(b).
3 Answer, pages 3-4. The examiner withdrew the ground of rejection with respect to appealed
claims 2, 7, 8, 10/2, 11/2, 12, 13, 14/2 and 15/2 (id., page 2).
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