Appeal No. 2003-1575 Page 7
Application No. 09/420,306
higher roughness than the forward roller 30 rather than the forward roller having a
higher roughness than the rearward roller as recited in claim 4; and (2) concluded that
reversal of Bleeker's rollers such that having the forward roller 30 with higher roughness
than the rearward roller would not have modified the operation of Bleeker's device and
that if one of ordinary skill in the art desired to change the massaging effect, one would
have looked to Bleeker's device and seen that reversing the location of Bleeker's
rollers, would be able to provide different massaging effects.1
The appellant argues that the applied prior art does not suggest the claimed
subject matter. We agree. In that regard, the teachings of Bleeker do not in any way
teach or suggest that Bleeker's forward roller 30 in the embodiment of Figure 9 wherein
the forward roller 30 is within the suction chamber 56 have a higher roughness than the
rearward roller 31. In fact, Bleeker teaches the exact opposite. To supply this omission
in the teachings of Bleeker, the examiner made the above-noted determination that this
difference would have been obvious to an artisan. However, this determination has not
been supported by any evidence that would have led an artisan to arrive at the claimed
invention. Thus, the examiner has not presented a prima facie case of obviousness.2
1 Thus, in the rejection of independent claim 4, the examiner does not rely on the teachings of
Bergmann.
2 We have also reviewed the reference to Bergmann but find nothing therein which makes up for
the deficiency of Bleeker discussed above.
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