Appeal No. 2002-0230
Application No. 09/136,070
Significantly, on the record of this appeal, the appellants have not challenged
the examiner’s above noted finding even though they had a clear opportunity to do so
when they filed a reply brief in response to the examiner’s answer. This is
understandable since the applied prior art in general and Rokugawa in particular
evince that one having an ordinary level of skill in this art at the time the appellants’
invention was made would be thoroughly familiar with the “basic scientific principles
of fluid dynamics and gravitation forces” upon which the examiner’s motivation
rationale and obviousness conclusion are based.
Under the circumstances, it is appropriate to regard the examiner’s above noted
factual finding as correct, especially since it has not been challenged or traversed by
the appellants on the record of this appeal. See In re Ahlert, 424 F.2d 1088, 1091-92,
165 USPQ 418, 420-21 (CCPA 1970). Also see the Manual of Patent Examining
Procedure (MPEP) § 2144.03 (8th ed., Aug. 2001). For this reason, and because the
examiner’s finding supports her motivation rationale and obviousness conclusion, I
believe the majority to be in error in determining that “the Examiner used
impermissible hindsight in rejecting the claims.” Slip Op. at page 6.
In addition to the foregoing, it is noteworthy that, on the record before us, the
appellants have not acknowledged much less critiqued the examiner’s aforenoted
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