Appeal No. 2001-1844
Application No. 09/178,951
established when the teachings of the prior art itself would
appear to have suggested the claimed subject matter to one of
ordinary skill in the art (see In re Bell, 991 F.2d 781, 783,
26 USPQ2d 1529, 1531 (Fed. Cir. 1993)). The conclusion that
the claimed subject matter is prima facie obvious must be
supported by evidence, as shown by some objective teaching in
the prior art or by knowledge generally available to one of
ordinary skill in the art that would have led that individual
to combine the relevant teachings of the references to arrive
at the claimed invention. See In re Fine, 837 F.2d 1071, 1074,
5 USPQ2d 1596, 1598 (Fed. Cir. 1988).
Looking at the examiner’s rejection, we observe that the
only difference identified by the examiner between the subject
matter of appellants’ claim 1 on appeal and the food storage
tracking system of Namisniak ‘160 is that Namisniak ‘160 “does
not teach the use of magnets as the marker system” (answer,
page 3). However, our review of appellants’ independent claim
1 and Namisniak ‘160 reveals other deficiencies in the primary
reference that have not been addressed by the examiner. More
specifically, claim 1 on appeal sets forth, inter alia, a
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