Appeal No. 2006-2383
Application 09/025,896
protective cover (40) is placed over the blade (col. 4, lines 1-6; figure 3). The examiner
argues that “it would have been obvious to the ordinary artisan at the time of the instant
invention to provide the device of Rothje with the cover as taught by Snyder in order to
prevent potential harm to the user from the cutting edge” (answer, page 4). In order for a
prima facie case of obviousness to be established, the teachings from the prior art itself
must appear to have suggested the claimed subject matter to one of ordinary skill in the art.
See In re Rinehart, 531 F.2d 1048, 1051, 189 USPQ 143, 147 (CCPA 1976). The mere
fact that the prior art could be modified as proposed by the examiner is not sufficient to
establish a prima facie case of obviousness. See In re Fritch, 972 F.2d 1260, 1266, 23
USPQ2d 1780, 1783 (Fed. Cir. 1992). The examiner has not established that the applied
references themselves would have fairly suggested, to one of ordinary skill in the art, using
a protective cover for the blade of a circle cutter for materials such as carpeting to protect a
user against being cut by the beveled edge (2) (Rothje, page 1, line 53) of an ice cream
dispenser.
For the above reasons we reverse the rejection under 35 U.S.C. § 103 over Rothje in
view of Snyder.
Rejection under 35 U.S.C. § 103
over Rothje in view of Seib
The examiner argues that “it would have been obvious to the ordinary artisan at the
time of the instant invention to provide the device of Rothje with the cover as taught by Seib
et al in order to prevent potential harm to the user from the cutting edge and to facilitate
storage of the device” (answer, pages 4-5). The cover referred to by the examiner is the
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