Appeal No. 2001-2168
Application No. 09/083,307
at 433. No evidence has been introduced to satisfy this
burden. Compare Ludtke 441 F.2d at 664, 169 USPQ at 566.
In the present case, therefore, the subject matter of
claim 9 is anticipated by the Lentz patent because each and
every limitation in claim 9 is disclosed, either expressly
or inherently, in the Lentz patent. See Schreiber, 128
F.3d at 1477, 44 USPQ2d at 1431. With regard to
appellant’s examples on pages 12-14 of the specification
and appellant’s argument on page 7 of the main brief,
evidence of nonobviousness or teaching away in the art is
not relevant where, as here, the rejection is based on lack
of novelty. See In re Malagari, 499 F.2d 1297, 1301, 182
USPQ 549, 553 (CCPA 1974). Furthermore, the rejection of
claim 9 under § 103 is nonetheless proper since
anticipation is the epitome of obviousness. See In re May,
574 F.2d 1082, 1089, 197 USPQ 601, 607 (CCPA 1978).
For the foregoing reasons, we will sustain the
examiner’s § 103 rejection of claim 9. We will also
sustain the examiner’s § 103 rejection of claims 1-4 and
18-20 since, as noted supra, these claims were argued as a
group with claim 9 and therefore fall with claim 9. In
addition, we will also sustain the examiner’s § 103
rejection of claims 8 and 22 since appellant has not
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007