Appeal No. 2005-1042
Application No. 09/759,543
to those previously advanced. Accordingly, we also hereby
sustain the section 103 rejection of claims 1 and 2 as being
unpatentable over Goss in view of Brungs.
Finally, the Niebylski reference evinces that foamed metals
are known in the prior art as materials of construction (e.g.,
see the discussion of prior art at lines 15-32 in column 1).
Indeed, the appellants acknowledge as much in their discussion of
prior art on specification pages 4 and 7.3 Because the prior art
recognizes the use of foamed metals in constructing articles of
manufacture and concomitantly recognizes the benefits which
attend this use, it is appropriate to conclude that an artisan
would have found it obvious to use foamed metals in constructing
Goss’s level housing in order to obtain the advantages associated
with foamed metals by the prior art as evinced, for example, by
the Niebylski reference. The appellants’ nonobvious arguments
(e.g., see the paragraph pages 7 and 8 of the brief) correspond
3
3 It is axiomatic that admitted prior art in an applicant’s
specification may be used in determining the patentability of a
claimed invention (In re Nomiya, 509 F.2d 566, 570-71, 184 USPQ
607, 611-12 (CCPA 1975)) and that consideration of the prior art
cited by the examiner may include consideration of the admitted
prior art found in an applicant’s specification (In re Davis, 305
F.2d 501, 503, 134 USPQ 256, 258 (CCPA 1962); compare In re
Hedges, 783 F.2d 1038, 1039-40, 228 USPQ 685, 686 (Fed. Cir.
1986)).
7
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