Appeal No. 2003-0500 Page 9
Application No. 09/794,362
evidence relied on to establish unobviousness must be
commensurate in scope with the claimed subject matter. See In re
Kerkhoven, 626 F.2d 846, 851, 205 USPQ 1069, 1072-73 (CCPA 1980)
and In re Clemens, 622 F.2d 1029, 1035, 206 USPQ 289, 296 (CCPA
1980).
Under the circumstances recounted above, it is our
determination that the evidence of record for and against a
conclusion of obviousness, reconsidered in light of the
respective arguments and evidence advanced by appellant and the
examiner, on balance, weighs most heavily in favor of an
obviousness conclusion with respect to the rejection under
consideration. Accordingly, we shall sustain the examiner's
§ 103 rejection.
CONCLUSION
The decision of the examiner to reject the appealed claims
under 35 U.S.C. § 103 as being unpatentable over Kashi in view of
Ito is affirmed.
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