Appeal No. 95-0954
Application 08/058,092
rejection under 35 U.S.C. § 103 will be affirmed. Because our
reasoning differs substantially from that of the examiner, we
will denominate the
affirmance as involving a new ground of rejection under 37 CFR
§ 1.196(b). We agree with appellant that the rejection under
35 U.S.C. § 112, second paragraph is not well founded. This
rejection therefore will be reversed.
Rejection under 35 U.S.C. § 103
Appellant acknowledges that it was known in the art to
infuse fragrances into a polystyrene foam carrier, and that
such a carrier was known to be undesirable because it is
substantially non-biodegradable and will not decompose, and
therefore will become a permanent part of a landfill
(specification, page 1, lines 21-32). Given this problem, 2
those of ordinary skill in the art would have been motivated
2It is axiomatic that our consideration of the prior art
must, of necessity, include consideration of the admitted
state of the art. See In re Hedges, 783 F.2d 1038, 1039-40,
228 USPQ 685, 686 (Fed. Cir. 1986); In re Davis, 305 F.2d 501,
503, 134 USPQ 256, 258 (CCPA 1962).
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