Appeal No. 2002-1778 Page 10
Application No. 09/285,078
a new mode of construction, or new properties or uses of the article that were not
obvious and, in effect, make the old material obsolete. See Lyle/Carlstrom Associates
Inc. v. Manhattan Store Interiors, Inc., 635 F.Supp. 1371, 1385, 230 USPQ 278, 288
(E.D.N.Y. 1986) (citations omitted), aff'd mem., 824 F.2d 977 (Fed. Cir. 1987); accord
Graham v. John Deere Co., 383 U.S. 1, 11, 148 USPQ 459, 464 (1966).
For the reasons set forth above, the decision of the examiner to reject claim 2
under 35 U.S.C. § 103 is affirmed.
Claim 3
The appellant has grouped claims 2 and 3 as standing or falling together.5
Thereby, in accordance with 37 CFR § 1.192(c)(7), claim 3 falls with claim 2. Thus, it
follows that the decision of the examiner to reject claim 3 under 35 U.S.C. § 103 is also
affirmed.
Claims 4 and 5
We will not sustain the rejection of claims 4 and 5 under 35 U.S.C. § 103.
5 See page 5 of the appellant's brief.
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