Appeal No. 2006-1355 Παγε 3
Application No. 10/266,657
We turn first to the examiner's rejection of claims 1 to 4 and 8 under 35 U.S.C.
§ 102(b) as being anticipated by Simmons. The examiner's findings regarding the
Simmons reference can be found on pages 2 and 3 of the final rejection.
The appellant argues that Simmons does not disclose the following subject
matter recited in claim 1:
at least partially elastic counter-holder (5) having a support
surface (22) for supporting the packaging material during
cutting
The examiner finds that the alignment device 80 with transition surface 84 of
Simmons is an elastic counter-holder having a support surface that supports the
packaging material during cutting.
Simmons discloses a cushioning conversion machine which includes a
cutting/alignment assembly 56. As is depicted in Figure 5B2, the alignment transition
surface 84 does not support the packaging material during the cutting of the dunnage.
Rather, the surface 84 is disposed remote to the dunnage opening 48 and thus remote
from the dunnage during the cut (col. 7, lines 46 to 48).
As such, the alignment transition surface 84 does not support the packaging
material during cutting. We do not agree with the examiner that the term "cutting" is
broad enough to be interpreted as a cutting process. In our view, the language "during
cutting" relates to the position of the surface 84 when the dunnage is cut. Clearly, when
the dunnage is cut, the surface 84 does not support the dunnage. Therefore, we will not
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