Appeal No. 2001-2046
Application No. 08/665,046
of presenting a prima facie case of obviousness. See In re Rijckaert, 9 F.3d 1531,
1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993). It is well-established that the conclusion
that the claimed subject matter is prima facie obvious must be supported by a
preponderance of 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); In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
Findings of fact and conclusions of law must be made by the examiner in accordance
with the Administrative Procedure Act, 5 U.S.C. 706 (A), (E) (1994). See Zurko v.
Dickinson, 527 U.S. 150, 158, 119 S.Ct. 1816, 1821, 50 USPQ2d 1930, 1934 (1999).
Upon judicial review, findings of fact relied upon in making the obviousness rejection
must be supported by substantial evidence within the record. See In re Gartside, 203
F.3d 1305, 1315, 53 USPQ2d 1769, 1775 (Fed. Cir. 2000).
In essence, we find Pesticide and Toxic Chemical News, Qureshi, Ohno and
Ninomiya to be cumulative disclosures, teaching commercial rope or string formulations
incorporating sex pheromones, which contain an insect mating disruption agent.
Capizzi is relied on by the examiner for its disclosure of pheromone release
technology which hinders the mating of undesirable insects by diffusing the attracting
agent through the air in such a way as to hinder the insects in localizing the members of
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