Appeal No. 2004-1250
Application No. 09/760,400 Page 7
claim and the applied prior art, it is incumbent upon appellant
to prove that the applied prior art does not in fact possess the
characteristics relied on. See In re Spada, 911 F.2d 705, 708,
15 USPQ 1655, 1658 (Fed. Cir. 1990); In re Fitzgerald, 619 F.2d
67, 70, 205 USPQ 594, 596 (CCPA 1980); In re Best, 562 F.2d 1252,
1255, 195 USPQ 430, 433 (CCPA 1977). The reason is that the
Patent and Trademark Office is not able to manufacture and
compare products. See Best, 562 F.2d at 1255, 195 USPQ at 434.
Here, appellant has not satisfied this burden.
It follows that, on this record, we shall sustain the
examiner’s § 102 rejection.
§ 103(a) Rejection
Concerning appealed claim 4, the examiner relies on the
teachings of Komatsu in addition to Chung to establish the
obviousness of the claimed subject matter. In this regard, the
examiner (answer, page 5) has reasonably determined that it would
have been prima facie obvious to one of ordinary skill in the art
to arrive at the claimed subject matter with a reasonable
expectation of success in so doing by employing a vibratory
generator including a coil wrapped magnet (armature) and plate
arrangement as disclosed in Komatsu as a vibratory generator in
Chung for the purpose of providing vibrations in the device of
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