Appeal No. 1999-2274
Application No. 08/811,787
by using the energy subtraction method described in the instant specification. Thus, we do
not find Allport to be reasonably pertinent to the problem appellant was attempting to solve.
Accordingly, we hold that Allport does not constitute analogous art and, therefore,
has been improperly applied in combination with either Alvarez or Brooks to
establish obviousness of the instant claimed subject matter within the meaning of 35
U.S.C. § 103. As such, we will not sustain the rejection of claims 1-5, 10-16 and 20-42
under 35 U.S.C. § 103.
We also note that while it is not, per se, determinative of the issue, Dr. Allport
himself declares that a “practitioner in the x-ray imaging field at the time the Barnes ‘688
patent was filed would not have been aware of my ‘104 patent and would not have
considered it reasonably pertinent to the particular imaging problem with which Dr. Barnes
was involved” [tab 4, exhibit 4 to the appendix to the principal brief].
We further note the many declarations submitted by appellant as objective evidence
of nonobviousness through commercial success, copying by others, long-felt need, prior
failure by others, licensing, unexpected results, skepticism by skilled artisans and lack of
independent development. While the objective evidence appears
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