Appeal 2007-3920
Application 90/007,025
ascertained, and the ordinary level of skill in the art resolved.9 In this case,
there is no evidence of obviousness other than the claims of the cited
patents. Thus, the determination of the scope and content of the prior art, as
well as the ascertainment of the differences between the prior art and
claim 3, calls for a comparison of claim 3 with one or more of the earlier
claims.
Claim 3 and the prior claims
The claims of the 063 patent are directed to a "chain link for a product
capturing chain" with "a resilient, hollow, tubular gripping member".10 The
claims of the 846 patent are directed to a
"carrying member for a product capturing
chain" with "a hollow, tubular resilient gripping
member".11 Thus, some sort of resilient,
hollow, tubular gripper is a necessary part of
the invention in both prior patents. The
following table compares the structures
actually claimed in the specified claim of each
patent, again with reference to FIG. 5 (right),
which is present in each patent.
9 Graham v. John Deere Co., 383 U.S. 1, 17 (1966), cited with approval in
KSR Int'l v. Teleflex Inc., 127 S. Ct. 1727, 82 USPQ2d 1385 (2007). The
record on appeal does not contain objective evidence of secondary
considerations.
10 063 patent 4:15-41 (claim 1).
11 846 patent 4:63-5:15 (claim 1).
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