Appeal No. 2004-0350
Application No. 09/570,507
We reach a different conclusion regarding the section 103
rejection of claims 15 and 16 as being unpatentable over Kraushaar
in view of Hailer and further in view of Schmidt. As presented
in the answer, this rejection does not include a discussion of the
Schmidt reference. However, in the Office action mailed April 23,
2002 as paper no. 14, the Examiner expresses his obviousness
conclusion in the following manner:
Regarding claim 15, although the Hailer
base does not have pivoting legs, it would have
been an obvious matter of design choice to
substitute pivoting legs for the Kraushaar game
as modified above since it has generally been
recognized that the concept of making elements
adjustable involves only routine skill in the
art. Moreover, it would have been obvious to
provide pivoting legs in view of Schmidt who
shows in Figures 4 and 5 that it is old and
well-known in the art to collapse a base by
using pivotally attaching tubular members to
make the target more easily stored.
The Examiner’s conclusion of obviousness lacks persuasive
merit. Of the prior art here applied by the Examiner, only the
Schmidt reference contains any teaching or suggestion relating
to a pivot feature of any kind. However, the Examiner does not
identify and we do not independently perceive any disclosure in
this reference which would have suggested providing the modified
Kraushaar apparatus discussed above with couplers which pivotally
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