Appeal No. 2005-0308
Application 09/934,349
We agree with the examiner’s findings (answer, pages 7-10) that as a matter of fact, the
first, second and fourth features argued by appellants are limitations of appealed claim 1 that are
found in a heated coffee mug taught by Vanselow.
Accordingly, we have again considered the totality of the record before us, weighing all
of the evidence of anticipation found in Vanselow with appellants’ countervailing arguments for
non-anticipation in the brief, and based thereon, conclude that the claimed invention
encompassed by appealed claim 1 would have been anticipated as a matter of fact under
§ 102(b).
Based on our review of the record, we further are in agreement with the supported
conclusion advanced by the examiner that as a matter of law, prima facie, the claimed heated
coffee mug apparatus encompassed by appealed claims 2, 4 and 5 would have been obvious over
the combined teachings of Vanselow and Stein, the combined teachings of Vanselow, Stein and
Dam and the combined teachings of Vanselow, Stein and Gordon, respectively, to one of
ordinary skill in this art at the time the claimed invention was made. (answer, pages 4-7). Thus,
we again consider the record as a whole with respect to these ground of rejection in light of
appellants’ rebuttal arguments in the brief. See generally, In re Oetiker, 977 F.2d 1443, 1445,
24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785,
788 (Fed. Cir. 1984).
While we generally agree with appellants’ statements of the holdings of decisions by our
reviewing court and its predecessor court (brief, pages 5-9), we find little argument that
correlates such legal tenets to the facts in the record before us. Indeed, the sole factual
allegations set forth by appellants involve the alleged “making [sic, a] heating element powered
by a vehicle’s electrical system for heating a conventional drinking mug in a manner that
flexibly retains the mug in firm mechanical contact” (brief, page 7, lines 8-10). However, as the
examiner points out (answer, page 7), the feature alleged by appellants is neither disclosed nor
claimed.
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