Appeal No. 2003-1498
Application No. 09/762,000
performing this function is nothing more than speculative
assumption.
Under the circumstances recounted above, it is apparent that
the Examiner has failed to carry his initial burden of establishing
a prima facie case for believing that appealed claim 1 is
anticipated by Nachbauer or Jones based on the theory that the
faucet locks disclosed therein would be inherently capable of
performing the function recited in this claim. It follows that we
cannot sustain the § 102 rejection of claims 1, 5, 6 and 9 as being
anticipated by Nachbauer or the § 102 rejection of claims 1, 2, 4
and 9 as being anticipated by Jones.
In support of his § 103 rejection based on Nachbauer and
Jones, the Examiner proffers the following rationale on page 4 of
the answer:
The species were said to be obvious
variants by applicant in paper #5. Fig. 1 has
been examined on the merits and claims drawn
thereto have been rejected supra.[1] In view
of applicant’s admission these claims believed
directed to embodiments other than Fig. 1 are
deemed obvious over Fig. 1 and therefore
unpatentable over the art here as set forth
supra.
1 It is appropriate to clarify that the claims referred
to by the Examiner as “rejected supra” are directed to the
embodiment or species of Appellants’ Figure 2 rather than Figure
1 as the Examiner believes.
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