Appeal No. 1998-2941 Page 29
Application No. 08/061,985
Reexamination Control No. 90/003,682
We recognize that the evidence of nonobviousness
submitted by the appellants 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 the
issue of obviousness under 35 U.S.C. § 103, carefully
evaluating both the evidence of obviousness cited by the
examiner and 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 appellants have submitted evidence in
the form of commercial success, copying by others, unexpected
results, long felt need, failed attempts, and acclaim within
the industry. With respect to claims 21 and 29, the evidence
of nonobviousness is not commensurate in scope with claims 21
and 29. In that regard, the evidence of nonobviousness is not
directed to the "reduced cholesterol liquid whole egg product"
set forth in claims 21 and 29. Thus, the required nexus
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