Appeal No. 2001-1154 Page 7
Application No. 08/482,579
the absence of a reasonable expectation of success one is left with only an
“obvious to try” situation which is not the standard of obviousness under 35
U.S.C. § 103. In re O’Farrell, 858 F.2d 894, 903, 7 USPQ2d 1673, 1680 (Fed.
Cir. 1988).
Accordingly, we reverse the rejection of claims 1, 3-11, 13-18 and 20-25
under 35 U.S.C. § 103 as being unpatentable over appellants’ acknowledged
prior art in view of Lennette, Shetty and McCurry.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 CFR § 1.136(a).
AFFIRMED-IN-PART
)
Sherman D. Winters )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
Donald E. Adams )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
Lora M. Green )
Administrative Patent Judge )
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