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| Reason for Combining References in Reverse |
Patently Chicken Redux |
May 04, 2012 02:37 pm |
Hypo:
The 103 rejections states that the claims are unpatentable over Reference A in view of Reference B. The Examiner had previously used Reference A in a 102 rejection. However, Reference A involves a Truck and Reference B involves a Cart. Reference B is solely used for the fact it discloses a cart. There is nothing else that the Examiner used from Reference B to reject the claims.
When stating the reason for combining A and B, the Examiner says that it would have been obvious for a POSITA to substitute the features disclosed in Reference A for the features of found in Reference B because of the alleged benefit provided by the features of Reference A.
In my experience, the Secondary Reference B is used to modify the Primary Reference A. I have never encountered a situation where the Examiner is modifing the Secondary Reference in view of the Primary Reference. Does the MPEP even make any statement allowing this? IMHO, the Examiner can only use some reason in Secondary Reference B to modify the truck of Primary Reference A to be a cart.
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