Appeal 2007-3167
Application 10/320,295
1 We turn next to the rejection of claims 28-32 under 35 U.S.C.
2 § 103(a) as being unpatentable over Kiyoshi in view of Nakamura and Will.
3 At the outset, we note that Appellant is correct (Reply Br. 3) that opening 15
4 of Kiyoshi is not a transparent portion. A transparent portion is a solid
5 portion of an element that is transparent to light. An opening in a surface is
6 not transparent, as asserted by the Examiner (Answer, 4). In addition, we
7 note that claim 28 is a product by process claim. Such a claim is drawn to
8 the product, not the process. The weight given to the recited elements in the
9 claims is for the structure that results from the process, as well as any
10 structure "gleaned" from the process steps. However, from our findings,
11 supra, that Nakamura describes the plastic stiffening member being of rigid
12 transparent plastic material (fact 3), we find that the combined teachings and
13 suggestions of Nakamura and will would have suggested to an artisan the
14 language of claim 28 for the same reasons as we sustained the rejection of
15 claims 23-27. Accordingly, we find that the combined teachings and
16 suggestions of Nakamura and Will would have suggested the language of
17 claim 28, and consider Kiyoshi to be surplusage.
18
19 CONCLUSION OF LAW
20 On the record before us, Appellant has failed to show error on the part
21 of the Examiner in rejecting claims 23-32 under 35 U.S.C. § 103(a) .
22
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