Appeal No. 2004-1108
Application 09/756,833
that the backpack of Rota can be used as the bag to carry the scooter of Ogami which is
constructed to be carried in a bag, in the reasonable expectation of successfully carrying the
scooter (answer, page 7).
The examiner finds with respect to appealed claims 3 and 16 that the combination of
references that includes McDermott would have reasonably suggested to one of ordinary skill in
this art to include legs with castors on a backpack for their apparent advantage (answer, pages
4-5 and 8). The examiner finds with respect to appealed claims 4 and 17 that the combination of
references that includes Kearl would have reasonably suggested to one of ordinary skill in this art
to include a hand carrying strap on a backpack for its apparent advantage (id., pages 5 and 8).
The examiner finds with respect to appealed claim 8 that the teachings of Rota alone and as
combined with Cannaday would have reasonably suggested to one of ordinary skill in this art to
include padding along an inner surface of the shoulder straps on a backpack for apparent
advantage (id., page 7). And, the examiner finds with respect to appealed claim 9 that the
combination of Rota and Mott would have reasonably suggested to one of ordinary skill in this
art to include a top closure flap with a hook and loop fastness for closing the backpack for its
apparent advantage (id., page 6).
Based on the substantial evidence in the references as applied by the examiner, we
determine that in each rejection, the examiner has made out a prima facie case of obviousness,
and accordingly, we have again evaluated all of the evidence of obviousness and nonobviousness
based on the record as a whole, giving due consideration to the weight of appellant’s arguments
in the brief. See generally, In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed.
Cir. 1992); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984).
Appellant initially submits that “the issue date of [Rota] . . . and the issue date of [Kearl]
. . . [are] subsequent to both the filing date of the present invention, as well as the invention date
of the present invention,” alleging that “the conception date of the present invention was prior to
September 4, 1999” (brief, page 10). We observe that the alleged date of conception, even if it
was established as fact by the filing of a declaration under 37 CFR § 1.131, Affidavit or
declaration of prior invention (2000), and no such declaration is of record as the examiner points
out (answer, pages 9-10), would appear to antedate only the filing date of Rota and not that of
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