Appeal No. 2004-2346 Page 5
Application No. 09/876,519
moving mechanism 86 of a sun roof assembly 16. Racine’s sun roof assembly
includes a pair of elongated tracks 20 as part of a stationary frame assembly 18, with a
mounting arm 22 associated with each track, the sun roof panel 24 being fixedly
mounted on the two mounting arms. The moving mechanism includes a drive which
turns an output gear. A pair of flexible members 88 formed by cables having a coil on
the exterior thereof are associated with each track 20, with the teeth of the output gear
meshing with the coils on flexible members 88. Each member 88 is mounted within a
guide tube 90 so as to extend transversely along the front portion of the stationary
frame assembly 18 in meshing engagement with the output drive gear. Each tube is
bent rearwardly and communicated with the front end of the associated track 20, with
the elongated member 88 extending from the tube 90 and being fixed to the connecting
rod 36 of the associated sliding member 30 of the mounting mechanism connected to
the associated mounting arm 22. According to the examiner (answer, page 4), it would
have been obvious to provide in Staser a take-up tube (guide tube 90) as taught by
Racine as an obvious expedient to prevent objectionable noise, which the examiner
contends “is a predominant indicator of warranty complaints in the industry and
therefore has significant priority for elimination in design parameters.”
Rejections based on 35 U.S.C. § 103 must rest on a factual basis. In making
such a rejection, the examiner has the initial duty of supplying the requisite factual basis
and may not, because of doubts that the invention is patentable, resort to speculation,
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