Appeal No. 98-0174
Application 08/545,162
Appellants’ argument that EerNisse ?was fully aware of the
Vali...method...? [brief-page 7] but failed to arrive at the
claimed invention is unpersuasive under 35 U.S.C. 103 because
under that portion of the patent statute, we look to what the
fictional artisan of ordinary skill would have been led to do
with the disclosures before him/her. The fact that one
particular person, e.g., EerNisse, might not have been led to do
something does not speak to what the fictional artisan of
ordinary skill within the meaning of 35 U.S.C. 103, would have
been deemed to do.
Similarly, appellants’ argument that the claimed subject
matter would not have been obvious because ?none of the
commercially available quartz microbalances use two modes for
temperature compensation? [brief-page 7] is not persuasive;
first, because none of the method claims 1 through 7 requires a
?microbalance? and, second, because the mere absence of
appellants’ claimed invention from the marketplace does not, per
se, make for patentability under 35 U.S.C. 103.
Thus, we sustain the rejection of claims 1 through 7 under
35 U.S.C. 103.
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