Appeal No. 2004-0453
Application No. 09/828,019
sections are employed in the fabrication of a turbine nozzle segment. In this regard, the
appellants emphasize that Lee characterizes his use of salvaged or previously used
sections as yielding a low cost advantage (e.g., see lines 9-11 in column 2), and that the
examiner’s proposed combination of a previously used section with a newly
manufactured section would be more costly than Lee’s combination, wherein both
sections are previously used. As properly noted by the examiner, however, the
appellants’ analysis clearly is incorrect in the circumstance when only a single previously
used section is available. In this circumstance, it would be more economical to combine
the previously used section with a complementary newly manufactured section, than it
would be to discard or store the single previously used section (see especially the section
entitled “Issue 4” on page 6 of the Answer). Significantly, the appellants have offered no
rebuttal to the examiner’s position on this matter.
In light of the foregoing, it is our determination that the examiner has established
a prima facie case of obviousness with respect to claims 19 and 20, which the appellants
have not successfully rebutted with argument and/or evidence of non-obviousness. It
follows that we will sustain the examiner’s Section 103 rejection of claims 19 and 20 as
being unpatentable over Lee in view of Mendham. See In re Oetiker, 977 F.2d 1443,
1445 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
As for Claim 21, the appellants’ sole argument against the rejection of this claim
is that, “[e]ven if it were obvious to combine the teaching of Rasch...with those of
Lee...and Mendham, the combination does not cure the failure of Lee...to teach each and
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