Appeal No. 2004-1408
Application No. 10/166,590
merit. In the final Office action mailed May 1, 2003 (paper 5),
the examiner merely repeated a finding of fact made in the
Office action mailed Feb. 4, 2003 (paper 3). This finding of
fact, which the appellant does not dispute, does not constitute
evidence substantiating “criticality,” much less unexpected
criticality. Rather, it constitutes evidence of obviousness.
The appellant’s request is granted to the extent of
reconsidering our original decision but is denied with respect
to making any substantive changes thereto.
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