Appeal No. 2000-0184
Application No. 08/955,226
on the obviousness of the differences between the claimed invention and the prior art rather than on the
invention as a whole as 35 U.S.C. 103 requires, as we believe the
examiner has done in the present case. See, e.g., Hybritech Inc. v. Monoclonal Antibodies, Inc.,
802 F.2d 1367, 1384, 231 USPQ 81, 93 (Fed. Cir. 1986), cert. denied, 480 U.S. 947 (1987).
Since we have determined that the teachings and suggestions that would have been fairly derived
from Auxier ‘268 and Auxier 158 would not have made the subject matter as a whole of claims 1 and 2
on appeal obvious to one of ordinary skill in the art at the time of appellant’s invention, we must refuse
to sustain the examiner’s rejection of those claims under 35 U.S.C.
§ 103.
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