Appeal No. 2001-1666
Application 08/818,333
The examiner argues that De Fresne’s 2 ft by 4 ft matrix is
hand holdable (pages 6-7), and that using this matrix at the site
of installation would have been within the purview of the skilled
artisan to more uniformly space the tiles apart and to permit
handling of the tiles prior to setup of the glue used to fasten
the tiles to the backing (answer, pages 14 and 16). The examiner
argues that “there is simply no reason to believe that the tile
installer would not have used the same techniques employed at the
factory for forming the tile strip at the site of installation
and such would have included the use of the template” (answer,
page 14).
For a prima facie case of obviousness to be established, the
teachings from the prior art itself must appear to have suggested
the claimed subject matter to one of ordinary skill in the art.
See In re Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143, 147 (CCPA
1976). The mere fact that the prior art could be modified as
proposed by the examiner is not sufficient to establish a prima
facie case of obviousness. See In re Fritch, 972 F.2d 1260,
1266, 23 USPQ2d 1780, 1783 (Fed. Cir. 1992).
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