Appeal No. 2004-1750
Application No. 09/985,937
911, 913, 200 USPQ 500, 502 (CCPA 1979) wherein it is noted that
drawings must be evaluated for what they reasonably disclose and
would have suggested to one of ordinary skill in the art.
We have also evaluated the declaration under 37 CFR § 1.132
provided by Mr. Thomas J. Nosker, however, when we weigh all of
the evidence before us, we are nonetheless of the view that the
examiner's rejection of claims 1 and 4 on appeal under 35 U.S.C.
§ 103(a) should be sustained. The first full paragraph on page 2
of the declaration evidences a single tie push test comparison
between appellants' claimed tie and what are apparently
conventional wood and concrete ties, i.e., ties without a pattern
of recesses formed therein. However, we note that appellants did
not select samples of concrete ties made in accordance with the
teachings of Reis for testing, which ties would appear to us to
be the closest prior art to the subject matter set forth in the
claims on appeal. Reis clearly teaches that railroad ties with
recesses (9) like those seen in Figures 2 and 3 of that patent
provide greater grip of the tie body to the foundation, or road-
bed. Since appellants did not select the closest prior art for
comparison, we consider that appellants' secondary evidence is
entitled to little weight in our overall determination of
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