Appeal No. 96-1474
Application 08/041,765
indicative of non-obviousness absent a showing that artisans
tried and failed to solve the problems of the prior art. In re
McGuire, 416 F.2d 1322, 1327, 163 USPQ 417, 421 (CCPA 1969).
Nevertheless, we will not sustain the rejection of
claim 1, nor the rejection of any other claim, under 35 U.S.C.
103 because while the examiner appears to have established a
prima facie case of obviousness, identifying the prior art,
pointing out the differences between the prior art and the
claimed subject matter, and giving a reason why it would have
been obvious to modify the prior art such that the claimed
subject matter as a whole would have been obvious in view
thereof, the preponderance of the evidence before us weighs in
appellant's favor.
More particularly, while Veith discloses the claimed
subject matter but for the non-magnetic spacers and Scott does
disclose such non-magnetic spacers, there must have been some
reason why the artisan would have been led to have provided the
non-magnetic spacers of Scott in the device of Veith in the
manner claimed.
While Scott provides a purpose for the non-magnetic
spacers, i.e., "to form the hollow cylindrical vacuum tight
envelope 7 of the tube 1" [column 2, lines 55-56] and "to
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