Appeal No. 2004-0314
Application No. 09/965,496
The examiner argues that Wewetzer’s compact is made of
plastic, and that plastics are sufficiently resilient that the
pintle can be pulled out of the slotted channels (31) of the plug
and reinserted without breaking the pintle or the plug (answer,
page 5). The examiner is relying upon the pintle and the plastic
around the openings of the slotted channels inherently having the
required resiliency. When an examiner relies upon a theory of
inherency, “the examiner must provide a basis in fact and/or
technical reasoning to reasonably support the determination that
the allegedly inherent characteristic necessarily flows from the
teachings of the applied prior art.” Ex parte Levy, 17 USPQ2d
1461, 1464 (Bd. Pat. App. & Int. 1990). Inherency “may not be
established by probabilities or possibilities. The mere fact
that a certain thing may result from a given set of circumstances
is not sufficient.” Ex parte Skinner, 2 USPQ2d 1788, 1789 (Bd.
Pat. App. & Int. 1986). The examiner points out that Wewetzer
teaches that “[p]rojecting from the central portion of the outer
flange of the cover is a rib 40 adapted to engage in a locking
groove 41 of corresponding length, the resiliency of the parts
permitting the rib to flexibly engage in the groove, whereby to
seat the cover tightly against the shoulder 18 in its closed
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