Appeal No. 2002-0983
Application No. 09/399,890
Viewing the rejection in the light most favorable to the
examiner, it might have been obvious for one of ordinary skill
in the art to try the examiner’s proposed modification of Doyle.
Our reviewing court, however, has made it clear that “obvious to
try” is not the proper test under 35 U.S.C. § 103. In re
Geiger, 815 F.2d 686, 688, 2 USPQ2d 1276, 1278 (Fed. Cir. 1987).
For these reasons and those set forth in the appeal brief,
we reverse the examiner’s rejection under 35 U.S.C. § 103(a) of
appealed claims 1 through 8 as unpatentable over Doyle in view
of Topolkaraev.
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