Appeal No. 2005-0340 7
Application No. 10/098,105
would have been obvious to one of ordinary skill in the art at the time appellants’
invention was made that the panel (119) of Sands “may be secured [sic, by] any known
attachment means for fastening including latching means provided to equivalently
attach the panel to a support structure in a convenient, reliable, tool-free manner which
allows the panel to be easily attached, detached and reattached” (answer, page 5). Like
appellants, it is our opinion that the examiner’s position is based entirely on speculation
and conjecture, since the examiner has not pointed to or relied upon any evidence to
support the above-noted contention. Thus, the examiner has not made out a prima
facie case of obviousness.
We additionally note the examiner's mention of several patents on page 17 of the
answer, but observe that none of the 20 or so listed patents have been set forth in the
statement of the § 103 rejection presently before us. Accordingly, those references
form no part of the issues presented for review by this panel of the Board. As pointed
out by the Court in In re Hoch, 428 F.2d 1341, 1342, 166 USPQ 406, 407 (CCPA 1970),
where a reference is relied upon to support a rejection, whether or not in a minor
capacity, there would appear to be no excuse for not positively including the reference
in the statement of the rejection.
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