Appeal No. 2002-1223
Application 09/435,455
Concerning this feature, the examiner also argues that
it would have been obvious to provide the methods of Oeftering
and Sterett with a catching step of the type under consideration.
In this regard, the examiner proffers a number of reasons why an
artisan would have been motivated to make such a provision. The
fatal deficiency of this obviousness conclusion is the fact that
the examiner has failed to advance any evidentiary support for
it. Thus, when viewing Oeftering or Sterett alone in accordance
with the examiner’s stated rejection, no evidentiary basis exists
for concluding that the artisan would have been even aware of
this catching step much less would have been motivated to employ
it in the respective methods of Oeftering or Sterett.
Under these circumstances, it is apparent that we
cannot sustain the examiner’s § 103 rejections of all appealed
claims as being unpatentable over Oeftering or Sterett.
As for the rejections based on Muntz or Smith, the
appellant with commendable candor has conceded, in effect, that
the here-claimed catching step is disclosed by each of Muntz or
Smith (e.g., see the sentence bridging pages 3 and 4 of the Reply
Brief as well as the first full sentence on page 7 of the Reply
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