Appeal No. 95-5000 Page 12
Application No. 08/021,883
affidavit states that (1) 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,
(2) the air diffusers used for aeration of aquaculture ponds
have in all cases been positioned on, or a short distance
above, the bottom surface of the pond, and (3) a deep shaft of
40 meters as taught by Bailey is too deep for aquaculture
ponds. It is our opinion that there is no nexus between the
claimed invention and the evidence provided by the affidavits.
In that regard, we note that the claims under appeal are not
limited to an aquaculture pond. Furthermore, while evidence
of nonobviousness is a factor that must be considered, it is
not necessarily controlling. See Newell Companies, Inc. v.
Kenney Manufacturing Co., 864 F.2d 757, 768, 9 USPQ2d 1417,
1426 (Fed. Cir. 1988).
In view of the foregoing, we are satisfied that when all
the evidence is considered, the evidence of nonobviousness
fails to outweigh the evidence of obviousness as in
Richardson-Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 44 USPQ2d
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