Appeal 2006-1223
Application 10/214,009
Appellants make essentially the same arguments with respect to this
rejection as they did for the previous rejection, and we find those arguments
unpersuasive for the same reasons discussed above. In addition, however,
Appellants assert that Jandacek “is not available as prior art against the
present application under 35 U.S.C. § 103(c)” (Br. 9), because “[t]he present
application and . . . [Jandacek] were, at the time the claimed invention was
made, owned by, or subject to an obligation of assignment to,” the same
entity (id.).
Nevertheless, as pointed out by the Examiner, Jandacek “was
published January 3, 2002, prior to the effective filing date of this
application . . . and is qualified as [ ] prior art under 35 U.S.C. [§] 102(a)”
(Answer 8). “Under 35 U.S.C. [§] 103(c), only prior art [that qualifies only]
under [one or more of subsections] 102 (e), (f), and (g), may be overcome”
(id.).
We find that Jandacek is available as prior art. Further, we conclude
that the Examiner has set forth a prima facie case that claim 1 would have
been obvious over Jandacek and Wagstaff, which Appellants have not
adequately rebutted by argument or evidence. As discussed above, claims 2
and 4-17 stand or fall with claim 1. We therefore affirm the Examiner’s
rejection of the claims under 35 U.S.C. § 103(a) as unpatentable over
Jandacek and Wagstaff.
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