Appeal 2007-0921
Application 10/793,878
how and why one of ordinary skill in the art would have found or made the
semi-solid billet supply system of Carden ready for a vacuum device
attachment to the injection sleeve. In this regard, the Examiner has not
identified any vacuum forming seals in Carden and persuasively explicated
how the proposed vacuum device would have been connected and arranged
to cooperate with any such seals. 2 Nor has the Examiner articulated how
the prior art evidence establishes that any seals necessary for forming a
vacuum would have been furnished as a modification to Carden by an
ordinarily skilled artisan.
It is axiomatic that the legal conclusion of obviousness must be
supported by facts, not speculation, and the initial burden is on the examiner
to advance such facts to establish a prima facie case of obviousness. In re
Warner, 379 F.2d 1011, 154 USPQ 173 (CCPA 1967). On the record of this
appeal, it is our view that the Examiner has not carried the burden of
establishing a prima facie case of obviousness with respect to the subject
matter defined by the appealed claims.
CONCLUSION
The Examiner’s decision to reject claims 1, 3-8, 59, and 64-67 under
35 U.S.C. § 103(a) as being unpatentable over Carden in view of
Premkumar, and Cook; and to reject claims 9 and 10 under 35 U.S.C.
2 We recognize that the Examiner asserted that Carden discloses a
squeezing member (7) in rejecting the claims (Answer 3). However, item
(7) of Carden is disclosed as a piston plunger tip (Fig’s 3 and 4), not a
squeezing member constructed for solid material rods to move through and
form a seal with, as specified, for example, in independent appealed claims
64 and 67.
7
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