Appeal 2006-2165
Application 10/652,958
underside of the projecting mounting portions 34 forms “a base mounting
surface”]” as recited in claim 10.
Regarding claim 19, because Richardson uses a “foam plastic,”
Richardson necessarily suggests using a “foaming agent” as recited in
Appellant’s claim 19 to produce the foam.
Accordingly, the primary reference of the § 103(a) rejection,
Richardson, appears to disclose or suggest the features of claims 2, 10 and
19.
Furthermore, the Examiner needs to resolve a lack of clarity in the
record. Claim 18 was originally rejected under § 103(a) over Richardson in
view of Kernes, Blackburn, or Seabrook, or alternatively in view of
Appellant’s admission on page 13 of the Specification, in further view of
“official notice of common knowledge in the art, or, in the alternative
engineering design choice” (Non-Final Office Action mailed September 29,
2004, 4-5). However, the § 103 rejection applied to claim 18 in the Non-
Final Office Action was withdrawn in the Final Office Action but the
disposition of claim 18 with regard to the prior art rejections was never
resolved (i.e., claim 18 was neither objected to nor included in a §§ 102 or
103 rejection).3 Rather, the Examiner only rejected claim 18 under obvious-
type double patenting over Ward I and Ward II.
3 The Examiner rejected claims 1-21 under obvious-type double patenting
over Ward I and Ward II in the Final Office Action. However, the Examiner
additionally rejected claims 1, 6-7, 9, 11-13, 15-17, and 20-21 under § 103
over Richardson in view of Kernes, Blackburn, Seabrook or alternatively in
view of Appellant’s admission at page 13 of his Specification. Moreover,
claims 2, 3-5, 8, 10, and 14 were objected to by the Examiner. However,
claim 18 was not rejected under § 103(a) over Richardson in view of Kernes,
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