Appeal No. 2002-1732
Application No. 09/338,238
the claim language for these arguments. Arguments based on
limitations not appearing in the claims are not persuasive. In re
Self, 671 F.2d 1344, 213 USPQ 1 (CCPA 1982).
With regard to Toensing not disclosing a reference path, we
agree with the examiner that levelers 15-17 of Toensing cause the
edge of the web to stay level. As pointed out by the examiner,
at page 6 of the answer, the photocells 55 and 56 of Toensing,
fixed to frames 20, define a reference plane. Where the web
intersects with that reference plane, we have a reference path
with which any element being aligned can be aligned.
Since appellants provide no convincing arguments regarding
the rejection of claims 69-73 under 35 U.S.C. § 102(b) over
Toensing, we will sustain this rejection.
Turning to the rejections under 35 U.S.C. § 103, it is
incumbent upon the examiner to establish a factual basis to
support the legal conclusion of obviousness. See In re Fine, 837
F.2d 1071, 1073, 5 USPQ2d 1596, 1598 (Fed. Cir. 1988). In so
doing, the examiner is expected to make the factual
determinations set forth in Graham v. John Deere Co., 383 U.S. 1,
17, 148 USPQ 459, 467 (1966), and to provide a reason why one
having ordinary skill in the pertinent art would have been led to
modify the prior art or to combine prior art references to arrive
-7-
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007