Appeal No. 2003-0360 Page 12
Application No. 09/264,398
an attachment system in which the opposed ends of the strut (3) are fastened to
support feet (2), and discloses no slots in the underside, much less slots at the opposed
ends. The examiner has not provided reasons why the proposed modiftication would
increase the utility of the Sibinger device or where suggestion to do so is found. This
being the case, from our perspective the suggestion to make the modification proposed
by the examiner is found only in the hindsight afforded one who first viewed the
appellant’s disclosure, which is not a proper basis for a rejection. This rejection of
independent claim 20 and dependent claims 21, 22, 24, 25, 27, 31 and 32, as well as
that of independent claim 34, is not sustained.
Claims 20, 21, 24 and 34 stand rejected as being unpatentable over Ozog in
view of Duemmler, with the examiner’s rationale being the same as with Sibinger and
Duemmler, that is, while Ozog does not disclose slots in the strut, it would have been
obvious to add them to increase the utility of the Ozog device. On the basis of the
same reasoning we set forth in refusing to sustain the rejection based upon Sibinger
and Duemmler, we also will not sustain this rejection of claims 20, 21, 24 and 34.
CONCLUSION
The rejection of claim 33 under 35 U.S.C. § 112, first paragraph, is sustained.
The rejection of claim 33 under 35 U.S.C. § 112, second paragraph, is
sustained.
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