Appeal No. 2003-0231 Page 12
Application No. 09/749,372
Claim 12 reads as follows:
The microscope slide carrier assembly of Claim 1 further comprising:
(a) the compartment having a height of up to about one centimeter;
(b) the microscope slide carrier assembly including a stacking means.
(c) the compartment having a depth of up to about 20 centimeters.
The examiner ascertained (answer, p. 4) that Yuen discloses all the claimed
limitations of claim 12 except for the stacking means. The examiner then took Official
Notice that it was known in the art to provide a container having a stacking means such
as protrusions and recesses to facilitate stacking. Next, the examiner determined that
Young, cited by way of example, taught a carrier with a stacking means in Figure 25.
Lastly, the examiner concluded that it would have been obvious to one having ordinary
skill in the art in view of the Official Notice and/or Young to modify Yuen to include a
stacking means to facilitate stacking of a plurality of Yuen's story book food trays.
The appellant argues (brief, pp. 8-9) that claim 12 is patentable over Yuen. The
appellant specifically challenges the examiner to provide a reference to support the
examiner's position that it was known in the art to provide a container having a stacking
means such as protrusions and recesses to facilitate stacking. Absent such a
reference, the appellant traverses this rejection.
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