Appeal 2007-1972
Application 11/141,758
devices. Moreover, the artisan is presumed to have at least common sense.
See In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774 (Fed. Cir. 1985)
(argument presuming that element, if not wanted, would not be removed by
a skilled worker presumes stupidity rather than skill). Even with some
degree of “bodily” incorporation of the structures described by the
references, simply removing one or two electrical power receptacles from
the combined fitting would provide sufficient space for at least five signal
connection devices and sliding doors. (Answer 6.) Claim 1 does not
address how many, if any, electrical receptacles are required.
In response to the rejection of claims 10 and 21 under 35 U.S.C §
103(a) as unpatentable over Bambardekar, Bonilla, and Hadfield, Appellant
submits that the acknowledged teaching of a tab and a notch by Hadfield is
not part of an intumescent insert and the tab is not received within a notch in
the first plate to align an intumescent insert with a plate. (Appeal Br. 16.)
Neither we nor the Examiner disagree with the assessment. However,
nonobviousness cannot be established by attacking references individually
where the rejection is based upon the teachings of a combination of
references. In re Merck & Co., 800 F.2d 1091, 1097, 231 USPQ 375, 380
(Fed. Cir. 1986) (citing In re Keller, 642 F.2d at 425, 208 USPQ at 881
(CCPA 1981)). As the Examiner indicates (Answer 7), Hadfield was cited
to show that the use of a tab and a notch for aligning two objects was well
(and widely) known. Yet, Appellant has provided no evidence tending to
show that the inclusion of a tab on an intumescent insert and a notch on a
plate to align the insert in relation to the plate was “uniquely challenging or
difficult for one of ordinary skill in the art.” See Leapfrog Enters., Inc. v.
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