Appeal No. 2002-1123
Application No. 09/110,987
as that of the applicant, this does not in and of itself
preclude a conclusion of obviousness. In re Kemps, 97 F.3d
1427, 1430, 40 USPQ2d 1309, 1311 (Fed. Cir. 1996); In re Dillon,
919 F.2d 688, 693, 16 USPQ2d 1897, 1901 (Fed. Cir. 1990)(en
banc).
The appellant argues: “Neither reference provides a space
for the palm of a hand to contact the sheeted material. Garr
provides only a very small area that may be considered some type
of base, although this area is certainly not designed,
configured or sized for the purpose of the present invention.”
(Second appeal brief, page 5.) As we discussed above, Garr
provides a suggestion to size the portion of the table top
(i.e., an area corresponding to the appellant’s base member) so
as to arrive at the appellant’s claimed invention, albeit for a
reason that is different from that of the appellant. When
relatively large food products are wrapped using Garr’s
assembly, Garr’s table top area corresponding to the appellant’s
base member would be greater than 40 square inches and would be
capable of accommodating the palmar surface of an adult human
hand. In re Wolfe, 251 F.2d at 856, 116 USPQ at 444-45 (CCPA
1958) (“[W]e see nothing patentable in making the roller small
enough and of an appropriate material for oral use. The
differences are mere change of size and substitution of material
8
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