Appeal No. 2006-0064 Παγε 16
Application No. 09/155,740
We further note that Dr. Reid does not assert, much less establish, that he is
qualified as an expert in patent law, including claim interpretation. Yet, part of the Reid
declaration is seemingly directed toward the issue of claim construction and/or is
employed in the briefs in a manner so as to render or bolster an opinion as to the reach
of the subject matter encompassed by the appealed claims before us that is incorrect
for reasons discussed above. Given the above, we determine that the Reid declaration
is unpersuasive in establishing the non-obviousness of the appealed claimed subject
matter.
Having reconsidered all of the evidence of record proffered
by the examiner and appellants, we have determined that the
evidence of obviousness, on balance, outweighs the evidence of
nonobviousness. Hence, we conclude that the claimed subject
matter as a whole as required by claim 1 would have been obvious
to one of ordinary skill in the art. Accordingly, we shall
sustain the examiner’s § 103 rejection of claim 1.
Concerning the examiner’s rejection as to appellants’ second
claim grouping (claims 2-5, 9-13 and 17), we select independent
claim 2 as the representative claim. While stating that these
claims are separately patentable, appellants simply maintain that
this grouping of claims is patentable for reasons already stated
at page 14 of the brief. While appellants refer to claims 9 and
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