Appeal No. 2001-1343
Application No. 08/965,818
are clearly outweighed by the examiner’s strong reference
evidence of obviousness. In this regard, the mere existence
of evidence of non-obviousness does not control the
obviousness determination. See Newell Companies Inc. v.
Kenney Mfg. Co., 864 F.2d 757, 768, 9 USPQ2d 1417, 1426 (Fed.
Cir. 1988), cert. denied, 493 U.S. 814 (1989); Richardson-
Vicks Inc. v. The Upjohn Co., 122 F.3d 1476, 1483, 44
USPQ2d 1181, 1187 (Fed. Cir. 1997).
Hence, given the totality of relevant evidence and
argument before us, the examiner’s conclusion that the
differences between the subject matter recited in
representative claim 77 and the prior art are such that the
subject matter as a whole would have been obvious at the time
the invention was made to a person having ordinary skill in
the art is well founded. Accordingly, we shall sustain the
standing 35 U.S.C. § 103 rejection of claim 77 as being
unpatentable over Bernard in view of Thompson.
Since the appellant has not argued separately the
patentability over the prior art of any particular claim apart
from the others, the rest of the appealed claims rejected
under 35 U.S.C. § 103 stand or fall with representative claim
15
Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: November 3, 2007