Appeal No. 97-3400
Application 08/584,908
areas of Lowenstein’s Figure 1 sheet is as called for in the
claim for an appropriately sized film medium having an
appropriately arranged series of images recorded thereon.
For the reasons discussed above, claim 1 lacks novelty over
Lowenstein’s Figure 1 article. While we appreciate that the
examiner has expressed the rejection in terms of obviousness, we
note that evidence establishing lack of novelty in the claimed
invention necessarily evidences obviousness. Lack of novelty has
been characterized by one of the predecessors of our court of
review as being the ultimate or epitome of obviousness. See In
re Fracalossi, 681 F.2d 792, 794, 215 USPQ 569, 571 (CCPA 1982)
and In re Pearson, 494 F.2d 1399, 1402, 181 USPQ 641, 644 (CCPA
1974). We therefore shall sustain the examiner’s rejection of
claim 1 under § 103, noting that Holson and the examiner’s taking
of Official Notice are cumulative.
We will also sustain the rejection of dependent claim 3
since appellant acknowledges on page 4 of the brief that this
claim stands or falls with claim 1.
In summary, the standing § 103 rejection of claims 1, 3 and
5-7 is reversed as to claim 5-7 but is affirmed as to claims 1
and 3.
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