Appeal No. 2006-3370
Application No. 10/444,736
support of the position that the examiner has erred in the applied rejections over the
prior art.
Further, for reasons that are not apparent in this record, appellant seems to use
the terms Afurring strip@ and Afurring strap@ interchangeably in the written description and
in the claims. For example, instant claim 11 recites Aplacing a proximal furring strip
within said cradle@ in one line, and in the next recites Asecuring said proximal furring
strap [sic] onto support structure,@ which would appear to raise another issue regarding
lack of antecedent basis in the claims. For the purposes of this appeal, we will assume
that Afurring strip@ and Afurring strap@ are synonymous, but we will refer to the structure
by the commonly accepted term of Afurring strip.@
In response to the rejection of claims 1, 5-7, 9, 11, and 12 under 35 U.S.C. ' 103
as being unpatentable over Payne and Williams, appellant begins (Brief at 5-6) by
contesting the examiner=s finding that the top flanges of the Payne device as depicted in
the drawings meet the requirements of a Ahandle@ as claimed. Appellant does not
allege error in the finding of a motivation to combine the references1 ; i.e., that the
artisan would have been motivated to apply the standard furring strip dimensions as
taught by Williams to the orthogonal framing tool as taught by Payne.
1 The presence or absence of a motivation to combine references in an obviousness
determination is a pure question of fact. In re Gartside, 203 F.3d 1305, 1316, 53 USPQ2d 1769, 1776
(Fed. Cir. 2000).
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