Appeal No. 2003-0388 Page 4
Application No. 09/499,124
See In re Fine, 837 F.2d 1071, 1074, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988) and In re
Lintner, 458 F.2d 1013, 1016, 173 USPQ 560, 562 (CCPA 1972).
In the rejections under 35 U.S.C. § 103 before us in this appeal (final reejction,
pp. 2-6), the examiner (1) set forth the teachings of the applied prior art (i.e., Eggleston,
Des Roches and Herndon); (2) ascertained the differences between the claimed subject
matter and Eggleston;1 and (3) with respect to the independent claims on appeal (i.e.,
claims 1 and 6) concluded that it would have been obvious to one skilled in the art "to
modify the device of Eggleston to include a means for adjusting and fixing the vertical
distance between the front part of the skid plate and the frame as taught by Des
Roches."
The appellant (brief, pp. 5-7) argues that the applied prior art does not suggest
the claimed subject matter. We agree.
All the claims under appeal require at least a first skid plate to be attached to the
trailer frame so that (1) the vertical separation between the forward portion of the first
skid plate and the trailer frame can be adjusted and fixed, and (2) the vertical separation
1 After the scope and content of the prior art are determined, the differences between the prior art
and the claims at issue are to be ascertained. Graham v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ
459, 467 (1966).
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