Appeal No. 1999-2556
Application 08/774,848
patentable (see In re Schreiber, 128 F.3d 1473, 1477, 44
USPQ2d 1429, 1431 (Fed. Cir. 1997)).
Thus, Watson discloses, expressly or under principles of
inherency, each and every element of the animal control device
recited in claim 44. Accordingly, we shall sustain the
standing 35 U.S.C. § 102(b) rejection of this claim as being
anticipated by Watson.
Claim 45 depends from claim 44 and requires the claimed
device to further comprise a solar-powered fan for
distributing odors. In rejecting this claim under 35 U.S.C. §
103(a), the examiner concludes (see page 5 in the final
rejection) that Weldon would have suggested the provision of
such a fan to the Watson device. The appellant does not
challenge this conclusion. Instead, the appellant contends
(see page 28 in the brief) that the rejection is unsound
because Weldon fails to overcome the alleged deficiencies of
Watson with respect to parent claim 44. For the reasons2
2In traversing the rejection of claim 45, the appellant has chosen not to rely
on the 37 CFR § 1.132 declaration submitted August 20, 1998 (Paper No. 13) as evidence
of non-obviousness. Therefore, we find no need to assess the evidentiary weight to
which the declaration may be entitled.
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