Appeal No. 1999-1536 Page 9
Application No. 08/938,592
obviousness or nonobviousness under 35 U.S.C. § 103. Accordingly, we consider anew the
issue of obviousness under 35 U.S.C. § 103, carefully evaluating and weighing both the
evidence relied upon by the examiner and the evidence provided by appellants. See In re
Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984) and Stratoflex Inc. v.
Aeroquip Corp., 713 F.2d 1530, 1538, 218 USPQ 871, 879 (Fed. Cir. 1983).
Appellants argue (brief, page 5; reply brief, page 4) that the passage of seven years
from the issuance of the Ristvedt patent in 1987 (after the Black patent in 1974) until the filing
of the appellants' grandparent application No. 08/201,350 in 1994 evidences that a problem
existed for a long time and, thus, rebuts any assertion of obviousness of the subject matter of
claim 49. However, it is well established that the mere age of the references is not persuasive
of the unobviousness of the combination of their teachings, absent evidence that,
notwithstanding knowledge of the references, the art tried and failed to solve the problem. In
re Wright, 569 F.2d 1124, 1127, 193 USPQ 332, 335 (CCPA 1977); In re Neal, 481 F.2d
1346, 1347, 179 USPQ 56, 57 (CCPA 1973); In re McGuire, 416 F.2d 1322, 1327, 163
USPQ 417, 421 (CCPA 1969), cert. denied, 397 U.S. 989 (1970). While the declaration of
Dick Burnside (Paper No. 10, filed August 27, 1997), submitted by appellants during
prosecution of parent application No. 08/683,807, alleges that "[t]here has been a long-felt need
in the casino industry for a coin sorter of the type purchased from Cummins-Allison [assignee
of the instant application] in the past but with the additional advantage that it can be operated
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