Appeal No. 2006-1513 Παγε 5
Application No. 10/068,574
The examiner's position (final rejection, page 2) is that
although Tryon uses an adhesive to attach the photograph to the
main body, it would have been obvious to employ other means to
attach the photographs, since the function is the same.
Appellants' position (brief, page 5) is that the claim
requires the photograph containing the animal features to be non-
adhesively incorporated into the main body. Appellants argue
that the rejection fails because the examiner has not cited any
reference that would teach or suggest non-adhesively
incorporating the photograph containing the animal features into
the main body. The examiner responds (answer, page 4) that:
The photos could be mounted by other means such as
tacks, nails, clamps, paper clips, rivets, hook and
loop fasteners, to name a few common ways to mount the
photo to the main body. . . . if one did not have any
adhesive, no stores were open and one wanted to go
hunting for ducks or geese, then any of the above old
and well known attachment means could be used to attach
the photos to the main body.
From our review of the record, we find that Tryon refers to
adhesively securing the printed photographs are applied to the
body and wing with a suitable adhesive. The reference is silent
as to securing the photographs in any manner other than with
adhesives. In our view, the disclosure of securing the
photographs, through the use of an adhesive is not, in and of
itself, a teaching or suggestion to secure the photographs in a
non-adhesive manner. The examiner’s unsupported opinion is not a
substitute for evidence. Accordingly, we find that Tryon fails
to establish a prima facie case of obviousness of claim 21. The
rejection of claim 21, along with claims 22-26 under 35 U.S.C.
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