Appeal No. 2004-1052 Page 9
Application No. 09/848,132
Once again, to supply this omission in the teachings of Winninger, the examiner made a
determination (answer, p. 3) that this difference would have been obvious to an artisan
as a matter of engineering design choice. However, this determination has not been
supported by any evidence that would have led an artisan to arrive at an endless drive
belt having a tensile modulus of approximately 8500 N/mm/mm (1910 lbf/in/in). Without
such evidence, we must reverse the decision of the examiner to reject claim 26 under
35 U.S.C. § 103.
For the reasons set forth above, the decision of the examiner to reject claims 15
and 26, and claims 16, 17, 19, 22 to 24 dependent thereon, under 35 U.S.C. § 103 as
being unpatentable over Winninger is reversed.
The obviousness rejection based on Winninger and Semin
We will not sustain the rejection of claims 20, 21, 26 and 27 under 35 U.S.C.
§ 103 as being unpatentable over Winninger in view of Semin.
We have reviewed the patent to Semin additionally applied in this rejection but
find nothing therein which makes up for the deficiencies of Winninger discussed above
with respect to claims 15 and 26. Accordingly, the decision of the examiner to reject
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