Appeal No. 2002-0993 Page 20
Application No. 09/368,781
Claim 15 reads as follows:
A wire cutter, comprising:
a first lever arm having a handle end and a cutting end;
a second lever arm having a handle end and a cutting end;
a pivot assembly for connecting said first lever arm to said second lever
arm, said pivot assembly being located between the handle end and the cutting
end of said first lever arm and said second lever arm;
a first insert with multiple cutting edges;
a second insert with multiple cutting edges; and
means for non-threadedly connecting said first insert to said first lever arm
and said second insert to said second lever arm.
The appellants argue that the applied prior art does not suggest the claimed
subject matter of claim 15. We agree.
Claim 15 requires means for non-threadedly connecting the first insert to the first
lever arm and the second insert to the second lever arm. However, Root teaches
securing-screws J to connect the cutting-plates H to the members A. To supply this
omission in the teachings of Root, the examiner made a determination (final rejection,
p. 3; answer, p. 5) that this difference would have been obvious to an artisan.5
5 The examiner stated (final rejection, p. 3) that adhesive, force fits and other attaching means
"would appear to be mechanical equivalents of screws and would, absent a showing of criticality, appear
to be obvious." However, the examiner has not cited any evidence to support this statement. Moreover,
even if the statement were true in general, the examiner is required to set forth reasoning as to why it
would have been obvious at the time the invention was made to a person of ordinary skill in the art to have
replaced Root's securing-screws J with an adhesive, force fit or other non-threadedly connecting means.
Furthermore, the appellants do not have to establish criticality when the applied prior art does not set forth
a case of obviousness of the claimed subject matter.
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