Appeal No. 2003-1390
Application No. 08/989,342
Hupp fails to disclose or suggest an apparatus for forming a
design other than a design for brickwork or stonework. The
examiner has failed to establish how Budden’s disclosure would
have motivated one of ordinary skill in the art to have modified
Hupp to create a template for forming a three-dimensional design
simulating something other than brickwork or stonework. The
rejection is reversed.
7. Rejection of claim 29 under 35 U.S.C. § 103 as
unpatentable over any one of Hinkes, Lopez, Hupp or Nakanishi.
According to the examiner, it would have been obvious to one
of ordinary skill in the art at the time of the invention to have
modified the apparatuses of the primary references to use
fiberboard, wooden fiberboard or blown resin for the template as
recited in claim 29. Examiner’s answer, pages 15-16. According
to the examiner, “[m]ere selection of material known in the art
on the basis of suitability for an intended use would be entirely
obvious.” Id., page 16. Appellant’s arguments are limited to
his contention that, “[t]he independent patentability of Claim 1
. . . creates the requisite patentability of claim 29 since claim
29 depends on claim 1.” Appeal brief, page 24.
With respect to the rejections of claim 29 based on Hinkes,
Lopez or Hupp, we find that the examiner has failed to establish
why it would have been obvious to one of ordinary skill in the
art to have modified the template of Hinkes or Lopez to include
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