Appeal No. 2006-0970
Application No. 10/293,826
appellant's brief (filed October 5, 2004) and reply brief (filed February 14, 2005) for the
arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by appellant and the examiner. As a consequence of our
review, we make the determinations that follow.
We note that we have observed the video exhibits provided on video tape and
compact disk that the appellant offered as evidence of operability. Those videos show
devices that resemble the lifters shown in the images in both Naudin 1 and 2 that rise
and fall in the air. In neither is there any sort of payload attached, but the interaction
with the person in the video shows that the device has an upward force that is more
than that just required to lift its own weight. However, there is no way to ascertain from
the video demonstrations how much weight the device may support.
Claims 1-27 rejected under 35 U.S.C. § 101 as being unpatentable as directed to
non-operable subject matter lacking utility for such utility as is asserted being
incredible
The examiner makes two arguments that the claimed subject matter has incredible
utility for failing to be operable. The first argument is that Blaze provides evidence that
the claimed device is inoperative. [See Non-Final Rejection p. 2] The second argument
is that the examiner believes the claimed device is inoperative [See Answer at p. 3] The
examiner bases this disbelief on the structural difference between the device shown in
the exhibits and that disclosed in the specification and drawings and that it is hard for
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