Appeal No. 2005-0262
Application No. 10/101,732
Appealed claim 6 stands rejected under 35 U.S.C. § 103(a) as
being unpatentable over Sven in view of Mark and Held.
We have carefully reviewed the respective positions advanced
by appellant and the examiner. In so doing, we find that the
examiner has established a prima facie case of obviousness for
the claimed subject matter that has not been rebutted by
appellant. Accordingly, we will sustain the examiner's rejection
for the reasons set forth in the Answer.
Appellant does not dispute the examiner's factual
determination that Sven discloses a hand held vibrating
instrument comprising all the recited features with the exception
of the configuration of the claimed tool and the claimed disc
means for operating the electrical switch. Indeed, appellant
acknowledges that "[t]he examiner is correct in reciting the
elements found both in Sven and the only claim in the present
matter" (page 1 of Brief, last paragraph). Appellant also does
not contest the examiner's legal conclusion that it would have
been obvious for one of ordinary skill in the art to modify the
instrument of Sven with the tool of Mark and the disc of Held.
Rather, appellant submits the following:
However, a reference to Mark does not appear to be of
record either in the present application nor its
parent. As the last name of the inventor-applicant in
both applications is Mark, perchance the examiner is
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