Appeal No. 2004-0697
Application No. 09/950,535
of the table as recited in claim 12. Thus, the examiner’s
rationale for combining Messier and Smith to reject this claim
finds no reasonable support in the fair teachings of these
references. The only suggestion for combining the two in the
manner proposed stems from hindsight knowledge impermissibly
derived from the appellant’s disclosure.
Accordingly, we shall not sustain the standing 35 U.S.C.
§ 103(a) rejection of claim 12 as being unpatentable over Messier
in view of Smith.
As Griffith’s disclosure of a mobile grocery receptacle does
not overcome the foregoing deficiencies of Messier and Smith
relative to the subject matter recited in parent claim 12, we
also shall not sustain the standing 35 U.S.C. § 103(a) rejection
of dependent claims 13, 14 and 16 as being unpatentable over
Messier in view of Smith and Griffith.
Finally, the application is remanded to the examiner to
reconsider the patentability of the appealed claims with a focus
on Smith as the closest and most pertinent prior art. By way of
example, should the examiner determine that Smith’s transport
cart meets, either expressly or under principles of inherency,
each and every element of the invention set forth in claim 12, a
35 U.S.C. § 102(b) rejection of this claim would be in order.
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