Appeal No. 2006-0714 Page 6
Application No. 10/238,083
The examiner’s application of Flesher in rejecting dependent claims 13 and 42
provides no cure for the deficiency of Codos discussed above. Accordingly, the
rejection of claims 13 and 42 as being unpatentable over Codos in view of Flesher also
cannot be sustained.
REMAND TO THE EXAMINER
This application is remanded to the examiner, pursuant to 37 CFR § 41.50(a)(1),
for consideration of the following.
As indicated in our decision above, what is lacking in the rejection put before us
in this appeal is any evidence that mattress or cushion heights (see column 11, lines 5-
21 of Codos) within the range recited in appellants’ claims were known in the art at the
time of the appellants’ invention and would have been considered as being
encompassed by Codos’ description. Codos merely establishes that heights of eight
and one quarter inches and eight and three quarter inches, and heights varying
therefrom, were known at the time of appellants’ invention. Thus, upon remand, the
examiner should consider whether evidence is available that would indicate that one of
ordinary skill in the art would have understood innerspring coil heights to be within the
range claimed by the appellants within the context of Codos’ invention.
Additionally, it is not apparent from the record in this case that the examiner fully
appreciated the broad scope of appellants’ claim 1, which requires neither different
Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: November 3, 2007