Appeal No. 2000-0652 Page 16
Application No. 08/868,774
Second, the appellants have noted the deficiencies of
each reference on an individual basis, however, it is well-
settled that nonobviousness cannot be established by attacking
the references individually when the rejection is predicated
upon a combination of prior art disclosures. See In re Merck
& Co. Inc., 800 F.2d 1091, 1097, 231 USPQ 375, 380 (Fed. Cir.
1986).
Lastly, the appellants point out that the patent to Ben
Moura issued in 1972 and that Balkwill's patent application
was filed in 1992. The appellants appear to argue that the
fact that Balkwill did not incorporate the teachings of Ben
Moura into his device is evidence of nonobviousness. This
argument is without merit. Any "failure" of Balkwill to
incorporate the teachings of Ben Moura in his own apparatus is
not evidence of nonobviousness in this case because the
evidence in this record neither shows that Balkwill actually
knew of the patent to Ben Moura nor that he was seeking to
solve a problem that is solved by the appellants' invention.
See In re Touvay, 435 F.2d 1342, 1344, 168 USPQ 357, 359 (CCPA
1971).
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