Appeal No. 2002-2305
Application No. 09/473,792
Notably absent from Kamazawa is any mention or suggestion of
granular gem stones, such as diamonds or rubies, or any reason to
consider such precious gems as appropriate for use in Kamazawa's
vibrator. Thus, given Kamazawa's apparent preference for powdery
or granular metallic material and the lack of any teaching or
suggestion of granular precious gems, like the diamonds or rubies
used in appellant's claimed deep muscle stimulation device, we
must agree with appellant that there is no basis (i.e.,
motivation or suggestion) in Kamazawa, alone or when considered
with Priest, to use the specifically claimed materials in the
specifically claimed amounts as defined in appellant's claims on
appeal, and that the examiner's rejection of claims 1, 11, 13, 15
and 17 on appeal under 35 U.S.C. § 103 is improper.2
As for the examiners reasoning in rejecting claims 9 and 10
under 35 U.S.C. § 103(a) on the basis of the collective teachings
of Kamazawa and Priest (answer, pages 6 and 8), we find the
proposition that one of ordinary skill in the art would have
2 In light of our determination that the examiner has failed
to make out a prima facie case of obviousness, we find it
unnecessary to comment further on appellant's declaration filed
May 14, 2001 or the 12 pages of test results filed on October 1,
2001.
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