Appeal No. 95-5000 Page 11
Application No. 08/021,883
facie case of obviousness, we recognize that the evidence of
nonobviousness submitted by the appellant must be considered
en route to a determination of obviousness/nonobviousness
under 35 U.S.C.
§ 103. See Stratoflex Inc. v. Aeroquip Corp., 713 F.2d 1530,
218 USPQ 871 (Fed. Cir. 1983). Accordingly, we consider anew
the issue of obviousness under 35 U.S.C. § 103, carefully
evaluating therewith the objective evidence of nonobviousness
supplied by the appellant. See In re Oetiker, 977 F.2d 1443,
1445-46, 24 USPQ2d 1443, 1444-45 (Fed. Cir. 1992); In re
Piasecki, 745 F.2d 1468, 223 USPQ 785 (Fed. Cir. 1984).
In this case the appellant has submitted evidence in the
form of two affidavits under 37 CFR § 1.132 to establish5
nonobviousness of the claimed invention. The Oswald affidavit
states that the "deep shaft" system of aeration (as taught by
Bailey) is the only known system wherein the air diffuser is
submerged below the bottom of the body of water. The Boyd
5Affidavit of Claude E. Boyd, filed April 6, 1995 and
affidavit of William J. Oswald, filed May 9, 1995 (see Paper
Nos. 17 and 27).
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