Appeal No. 2005-2197 Page 5
Application No. 10/751,432
Appellants argue that Beck does not anticipate the claimed invention because
the Examiner has only inferred that Beck discloses the discharge end has a
substantially fixed height. (Brief, p. 12). Appellants also argue “[s]ince no other prior
art reference of record describes a vehicle including a discharge end with a
substantially fixed height, and height adjustable constructions were prevalent during
the time of the Beck patent, it is reasonable to assume that those of ordinary skill in
the art would interpret the ‘usual manner’ as a conveyer including a height adjustable
discharge end.” (Brief, p. 13). We do not agree.
As correctly stated by the Examiner, Answer page 6, Beck does not describe
the structure necessary for adjusting the discharge end. The Examiner has never
alleged that the discharge end of the hauler vehicle of Beck is adjustable. When
making arguments that certain features are included in a reference the person making
those arguments, i.e., Attorney or Examiner, should cite to the specific portions of the
reference to support their argument. In the present case, Appellants have not cited
specific portions of the Beck reference that would support their argument that the
discharge end is necessarily adjustable. Further, Appellants have not directed us to
evidence on this record that establish that during the time of Beck hauler vehicles
comprising an adjustable discharge end were prevalent.2
2 In fact, the contrary appears to be the case. See U.S. 2,192,650 and U.S. 2,558,341 cited in the
present specification.
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