Appeal No. 2005-1708 Page 5
Application No. 10/370,122
9 and U-shaped strap 10 of Niaura’s damper as a single piece by forging as an art-
recognized alternative to the two-piece formation disclosed by Niaura.
The appellants argue that “[t]here is simply no way that the cylindrical section 9
and the fork 10 could be forged as one piece, because the cylindrical section 9 is a
tubular section which receives the piston rod 19" (brief, page 7). Finn’s disclosure of a
forged yoke-shaped element comprising legs 28, 30 integral with a tubular portion
clearly belies this argument. Appellants’ argument on page 3 of the reply brief that Finn
only discloses that a fork can be forged fails to appreciate Finn’s teaching of forging the
legs 28, 30 with a tubular portion accepting a separate sleeve 24 and is likewise not well
taken. Appellants’ arguments on pages 3-4 of the reply brief directed to the Breese
patent have not been considered, as Breese was not relied on in the examiner’s
refection of claim 2, as noted above. Inasmuch as appellants’ arguments fail to
persuade us of any error on the part of the examiner in rejecting claim 2 as being
unpatentable over Niaura in view of Finn, the rejection is sustained.
We note the that the examiner has not rejected claim 1, from which claim 2
depends, as being unpatentable over Niaura in view of Finn. Nevertheless, it logically
follows from our decision herein sustaining the examiner’s rejection of claim 2 as being
unpatentable over Niaura in view of Finn that claim 1 is likewise unpatentable over
Niaura in view of Finn. Thus, in the event of further prosecution in this application, the
examiner should take appropriate action with respect to independent claim 1 in light of
the affirmance of the rejection of dependent claim 2.
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