Appeal No. 2004-1815
Application No. 09/781,582 Page 18
forth in appellants’ briefs and above, we do not find that the
examiner has met the burden of presenting a prima facie case of
obviousness for the subject matter of claim 19 and the rejected
claims that depend thereon based on the combined teachings of
Ness ‘289, Smith and Ward.
Similarly with respect to independent claim 22 and the so
rejected claims depending therefrom, the examiner’s attempt to
build a prima facie case of obviousness based on the disparate
teachings of Ness ‘289, Smith and Ward is fundamentally flawed
for reasons stated in the briefs, especially pages 18-20 of the
reply brief. In this regard, we note that even the examiner
acknowledges that Ness ‘289 does not teach that the larger
compartment is convex (answer, page 11), as called for in claim
22. The examiner’s argument that Ward and Smith in combination
with Ness ‘289 would have suggested the claimed subject matter to
one of ordinary skill in the art, including the use of a concave
cross-sectional shape for the larger compartment in the Figure 6
embodiment of Ness’ 289 is not supported with any concrete
suggestion to employ such a particular shape in Ness ‘289 based
on those disparate teachings of Ward and Smith as discussed
above. It follows that we will not sustain the examiner’s
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