Appeal No. 2002-2227 Page 6
Application No. 09/522,545
the reasons set forth on pages 12-14 of the Brief, noting that the examiner apparently
has abandoned the position taken in the final rejection (Paper No. 6) inasmuch as the
examiner admits on page 6 of the Answer that “[d]uring this initial leveling all jacks are
extended.” We base our agreement with the appellants position on the matter of re-
leveling on the explanation provided in the Eichhorn affidavit as to why the Hamilton
system will not operate in the manner suggested by the examiner. In this regard, we
point out that although the examiner has “considered” this evidence, no discussion of it
has been provided by the examiner and, most notably, no explanation has been
provided as to why the examiner’s position should stand in the face of it. The
examiner’s inaction results in the appellants’ evidence standing unchallenged and
unrebutted on the record.
For the above reasons, it is our opinion that the combined teachings of
Fukumoto and Hamilton fail to establish that the subject matter recited in claim 24
would have been obvious to one of ordinary skill in the art, and we will not sustain the
rejection.
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