Appeal No. 1999-0674
Application No. 08/654,536
See In re Kuhle, 526 F.2d at 555, 188 USPQ at 9.
Finally, Ms. Iannucci’s reply on the Sandwich Factory letter of December 18, 1997 is
not entitled to probative weight and is not competent evidence for the reasons discussed supra.
Furthermore, the Rheon brochure is utilized in our rejection under 37 CFR § 1.196(b) to
merely reinforce the teachings of Hayachi.
For the foregoing reasons, we are satisfied that the combined teachings of Hayachi,
Burger, the Edhard pamphlets, the Edhard dispenser and filling spout equipment used by
appellant and the Rheon brochure establish a prima facie case of obviousness with respect
appealed claims 17, 18, 23 and 24.
With regard to appellant’s evidence of nonobviousness (namely the newspaper article in
USA Today), we are again mindful of the necessity of reweighing the entire merits of the matter
and hence considering all of the evidence of record anew with respect to our new ground of
rejection. In re Piasecki, 745 F.2d at 1474, 223 USPQ at 788. However, for the reasons
discussed supra, that newspaper article lacks probative value. We are therefore satisfied that
when all the evidence is considered, including the totality of the evidence of nonobviousness, the
evidence of nonobviousness is insufficient to overcome the evidence of obviousness adduced in
our new § 103 rejection of the appealed claims under 37 CFR § 1.196(b).
The examiner’s decision to reject claims 1 through 8, 17, 18, 23, 24 and 28 is affirmed
with respect to claims 17, 18, 23 and 24, but is reversed with respect to claims 1 through 8
and 28. A new ground of rejection of claims 17, 18, 23 and 24 has been introduced pursuant
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