Appeal No. 1998-1912
Application No. 08/780,744
19 and 20 will not be sustained. The anticipation rejection
of claim 13 will not be sustained because Knudsen’s deforming
means 156 and 176 would not be considered by the artisan to
comprise a “mouthpiece,” especially when that term is read in
light of appellants’ disclosure. Similarly, the anticipation
rejection of claim 14 will not be sustained because Knudsen’s
deforming means 156 and 176 are not stationary.
The § 103 Rejection
A threshold issue in this appeal with respect to the
standing § 103 rejection is appellants’ implicit argument that
Knudsen is non-analogous art. In an obviousness determination
under 35 U.S.C. § 103, art which is non-analogous is too
remote to be treated as prior art. In re Clay, 966 F.2d 656,
658-59, 23 USPQ2d 1058, 1060 (Fed. Cir. 1992). There are two
criteria for determining whether art is analogous: (1) whether
the art is from the field of the inventor’s endeavor,
regardless of the problem addressed, and (2) if the reference
is not within the field of the inventor’s endeavor, whether
station. Thus, each of claims 16, 19 and 20, in effect,
requires that the first and second stations are at different
levels or elevations.
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