Appeal No. 2001-1504
Application 08/618,263
functional or operational advantage. This constitutes yet
more support for the rationale underlying the examiner’s
proposed combination of Lance and Emmett.
In light of the foregoing, the Wooster declaration
carries little weight as evidence of non-obviousness, and
indeed seems more supportive of the examiner’s position than
the appellant’s. In any event, to the extent that the
declaration does constitute evidence of non-obviousness, it
clearly is outweighed by the examiner’s reference evidence of
obviousness. In this regard,
the mere existence of evidence of non-obviousness does not
control the obviousness determination. See Newell Cos. v.
Kenney Mfg. Co., 864 F.2d 757, 768, 9 USPQ2d 1417, 1426 (Fed.
Cir. 1988), cert. denied, 493 U.S. 814 (1989); Richardson-
Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1484, 44 USPQ2d 1181,
1187 (Fed. Cir. 1997).
Having duly considered the totality of evidence and
argument before us, we are satisfied that such justifies the
examiner’s conclusion that the differences between the subject
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