Appeal No. 96-2142
Application 08/284,388
Unpublished (or non-precedential) opinions of the
Federal Circuit are not precedent in the Federal
Circuit and will not be cited, considered, or regarded
as precedent by the EIC, the Board, or any other
tribunal within the Patent and Trademark Office.
In any event, we do not consider appellants' argument
concerning nonanalogous art to be well taken. The test for
determining whether prior art is analogous is well established;
as set forth in In re Clay, 966 F.2d 656, 658, 23 USPQ2d 1058,
1060 (Fed. Cir. 1992) (referred to in Oscar Mayer):
Two criteria have evolved for determining whether prior
art is analogous: (1) whether the art is from the same
field of endeavor, regardless of the problem addressed,
and (2) if the reference is not within the field of the
inventor's endeavor, whether the reference still is
reasonably pertinent to the particular problem with
which the inventor is involved. In re Deminski, 796
F.2d 436, 442, 230 USPQ 313 (Fed. Cir. 1986); In re
Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174 (CCPA
1979).
In the present case, Theurer '753 meets the first of these
criteria since, being directed to a mobile track correction
machine, it is clearly from the same field of endeavor as
appellants' invention. The argument in the reply brief that
appellants' "field of endeavor" is the same as the particular
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