Appeal No. 2003-0587
Application No. 09/533,514
We are at somewhat of a loss to understand the examiner’s
rejection of dependent claim 40 under 35 U.S.C. § 103(a) as being
unpatentable over Westerling alone or as being unpatentable over
Westerling in view of Hjalmer, since independent claim 37, from
which claim 40 depends, has not been rejected by the examiner
based on Westerling alone or Westerling in combination with any
other prior art references. Thus, it is clear to us that the
examiner has not made out a prima facie case of obviousness for
claims 37 and 40, and, in particular, has not indicated how the
apparatus in Westerling for stacking and unstacking bins is in
any way responsive to the lift table assembly set forth in claim
37 on appeal “for supporting a case while said case is being
filled with containers,” and which includes a drive assembly for
a lift table including a motor which lowers the lift table “as
said case is being filled with said containers.” Since we have
concluded that the examiner has not made out a prima facie case
of obviousness for claims 37 and 40, the rejections of claim 40
under 35 U.S.C. § 103(a) as being unpatentable over Westerling
alone and as being unpatentable over Westerling in view of
Hjalmer will not be sustained.
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