Appeal No. 2001-0193 Page 6
Application No. 09/182,138
who first viewed the appellants’ disclosure. This, of course, is not a proper basis for a
Section 103 rejection. In re Fritch, 972 F.2d 1260, 1264,
23 USPQ2d 1780, 1784 (Fed. Cir. 1992).
We therefore conclude that the teachings of Ahlgren and Pessina fail to establish a
prima facie case of obviousness with regard to the subject matter recited in claim 1, and
we will not sustain the rejection of claim 1 or of claims 2-4, which depend therefore. The
same reasoning applies to independent claim 5, which contains the same limitations
regarding the cam and follower drive, and the rejection of claims 5-7 also is not sustained.
REMAND TO THE EXAMINER
On page 2 of the specification the appellants point out that problems present in the
prior art with gear transmissions were solved in commonly assigned Huber U.S. Patent
No. 5,343,645, which issued on September 6, 1994. The appellants go on to describe the
Huber invention as moving the sign in 120 degree increments “while varying the speed of
rotation from a maximum velocity occurring during the changing of display surfaces to a
minimum velocity occurring as the position corresponding to the new display surface . . . is
approached.” This would appear to indicate that the problem to which the appellants have
directed their inventive efforts had been recognized and solved by Huber, and the
appellants’ invention constitutes an improvement to the solution offered in the Huber
patent. In fact, the appellants’ final statement in the background of the invention section of
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