Appeal No. 2006-0376
Application No. 09/971,866
genuine issue of material fact.” Dembiczak, 175 F.3d at 999, 50 USPQ2d at
1617, citing McElmurry v. Arkansas Power & Light Co., 995 F.2d 1576, 1578,
27 USPQ2d 1129, 1131 (Fed. Cir. 1993). The Federal Circuit states that, “[t]he
mere fact that the prior art may be modified in the manner suggested by the
Examiner does not make the modification obvious unless the prior art suggested
the desirability of the modification.” In re Fritch, 972 F.2d 1260, 1266 n.14, 23
USPQ2d 1780, 1783-84 n.14 (Fed. Cir. 1992), citing In re Gordon, 733 F.2d
900, 902, 221 USPQ 1125, 1127 (Fed. Cir. 1984). In addition, our reviewing
court stated, that when making an obviousness rejection based on combination,
“there must be some motivation, suggestion or teaching of the desirability of
making the specific combination that was made by Applicant” in Lee, 277 F.3d at
1343, 61 USPQ2d at 1433 (quoting In re Dance, 160 F.3d 1339, 1343, 48
USPQ2d 1635, 1637 (Fed. Cir. 1998)).
The examiner has found that Reynolds teaches a main grill (G1), main
burner (B1) and an auxiliary burner (B2), which is movable with respect to the
housing for the grill. See page 4 of the answer. We concur with the examiner’s
findings that these burners and grill meet the claimed burners and grills. We
additionally note that Reynolds teaches that the burners are gas, see column 1,
lines 66 through column 2, line 1. As such, we do not find that the reference
teaches away from a gas grill, as appellant argues, rather we find that Reynolds
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