Appeal 2007-0404
Application 10/684,611
When relying on numerous references or a modification of the prior
art, it is incumbent upon the Examiner to identify some suggestion,
motivation, or reason to combine the references or make the modification.
See In re Mayne, 104 F.3d 1339, 1342, 41 USPQ2d 1451, 1454 (Fed. Cir.
1997).
Applying this legal principle to the factual findings on this record, we
determine that the Examiner has adequately provided sufficient motivation
or suggestion to combine the references as proposed in the Answer 4-7.
Appellant argues that “the cited references do not contain any motivation or
suggestion to combine references” (Br. 6). However, Appellant has not
specifically identified any error in the Examiner’s establishment of
motivation or suggestion to combine the references (Answer 4-7).
Appellant’s sole argument appears to be that “none of the cited references
requires the foam cells to contain carbon dioxide” (Br. 6). This argument is
not well taken for reasons discussed above regarding Park and Hayes.
Accordingly, we determine that the Examiner has established a prima
facie case of obviousness based on the reference evidence. Based on the
totality of the record, including due consideration of Appellant’s arguments,
we determine that the preponderance of evidence weighs most heavily in
favor of obviousness within the meaning of § 103(a). Therefore, we affirm
all rejections on appeal based on § 103(a).
C. Summary
The rejection of claims 1-2, 5, 8-13, 16-19, and 22 under § 102(b)
over Park is affirmed. The rejection of claims 1-11, 22, and 23 under
§ 102(e) over Hayes is affirmed.
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