Appeal No. 2005-1690
Application 10/324,922
When the claim language in question is properly construed,
it is clear that the edge finishing strip seen in Tucker is NOT a
“tape-on” bead or drywall accessory like that defined in the
claims on appeal. Thus, for the reasons adequately set forth by
appellant in the brief and reply brief, we agree that the
examiner has failed to make out a prima facie case of
anticipation, and for that reason will not sustain the rejection
of claims 1 and 2 under 35 U.S.C. § 102(b).
We have additionally reviewed the patent to Dean relied upon
by the examiner in the rejection of dependent claim 3 under
35 U.S.C. § 103(a), but find nothing therein that makes up for
the deficiencies of Tucker noted above. Moreover, given the
discussion in Tucker of the problems associated with metal
beading (columns 1 and 2) and the express disclosure and teaching
therein of switching to stiff, water impervious plastic beading,
we find it incomprehensible that one of ordinary skill in the art
would have contemplated making the plastic beading of Tucker of
metal as the examiner appears to urge on page 3 of the answer.
Accordingly, we refuse to sustain the rejection of claim 3 under
35 U.S.C. § 103(a) based on Tucker in view of Dean.
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