Appeal No. 2003-0459
Application 08/727,328
REJECTION
The appealed claims stand rejected as follows:
1) Claims 15, 16 and 21 through 23 under 35 U.S.C. § 103 as unpatentable over the
combined disclosures of Johnson and Aycock; and
2) Claims 15, 16 and 21 through 23 under 35 U.S.C. § 103 as unpatentable over the
combined disclosures of Johnson, Aycock, Heinzelman and/or Darbo.
OPINION
We have carefully reviewed the claims, specification and applied prior art, including all
of the arguments and evidence advanced by both the examiner and appellants in support of their
respective positions. This review has led us to conclude that the examiner’s Section 103
rejections are not well founded. Accordingly, we will not sustain the examiner’s Section 103
rejections for essentially those reasons set forth in the Brief. We add the following primarily for
emphasis.
As recognized by the examiner, modifying a known double-stick, biaxially stretched
polypropylene carpet tape, as taught by Johnson and Aycock, would not result in the claimed
invention. See the Answer, pages 3 and 4. The examiner not only acknowledges that neither
Johnson nor Aycock teaches the claimed series of continuous toothed notches of about 0.3 to 6
mm in height, but also is unsure whether Johnson and Aycock are directed to tapes which can be
torn by hand transversely.2 See the Answer, pages 4 and 6. We also note that Johnson, the only
2 In re Warner, 379 F.2d 1011, 1017, 154 USPQ 173, 177-78 (CCPA 1967), cert. denied, 389 U.S. 1057 (1968),
reh’g denied, 390 U.S. 1000 (1968) (the examiner has the initial burden of supplying sufficient factual basis to
support a prima facie case of obviousness under 35 U.S.C. § 103).
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