Interference No. 104,158
and well above the surface to be shaved in the other two
embodiments. To extrapolate such a disclosure into a teaching
of an
axis on or below the surface being shaved is not supported by
the teachings of Kirk. As we stated previously, it is based
on mere speculation or conjecture.
For the reasons above, Althaus has not sustained his
burden of showing claims 9-28 of Oldroyd are unpatentable
under 35 U.S.C. § 103.
Althaus Claim 7
We turn to the issue of whether Althaus has
established that claim 7 of the Althaus patent should be
designated as not corresponding to the count in interference.
The test we must apply is found in 37 CFR § 1.601(n). The
rule reads as follows:
Invention (A) is the same patentable
invention as an invention "B" when
invention "A"
is the same as (35 U.S.C. 102) or is
obvious (35 U.S.C. 103) in view of
invention "B" assuming invention "B" is
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