Appeal No. 1998-2443
Application No. 08/704,956
the container is to be measured. The examiner concluded that it would
have been obvious, from the teachings of Oshima and Skrgatic, to place the EMAT of
Oshima on the bottom of the container.
Appellant contends that the combination is improper because Oshima deals with an
EMAT transducer while Skrgatic deals with a conventional transducer which needs to be in
contact with the wall of the container. Thus, concludes appellant, any combination of the
teachings of the references would result in either an EMAT in actual contact with the
bottom of the container, which would be inoperative since EMATs are not placed in actual
contact with a wall, or a conventional transducer located on a wall of a container not in
contact with the liquid contents.
Appellant’s analysis would seem to require a bodily incorporation of the element of
one reference into the device of the other reference. This is not a proper test for
determining whether a rejection under 35 U.S.C. § 103 is proper. With regard to what the
teachings of the applied references would have suggested to skilled artisans, we agree
with the examiner that it would have been obvious to place the ultrasonic wave transducer,
1, of Oshima, at the bottom wall of the container 9, rather than at the top as shown in
Oshima’s Figure 1. The skilled artisan would have recognized that both the conventional
and EMAT transducers were known and the use of either would have been equally obvious
to artisans, keeping in mind the advantages and disadvantages
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