Appeal No. 2003-0161
Application No. 09/578,575
paper no. 11, page 2), and that “[t]he Examiner is merely
substituting one well-known type of cooling means (the heat
sinks 48 of Cook et al) for the conventional compressor-type
cooling system used in Christiansen to arrive at the claimed
invention of cooling and maintaining the products in the server
at an effective temperature without using ice or electricity”
(answer, page 3).
For a prima facie case of obviousness to be established, the
applied prior art must be such that it would have provided one of
ordinary skill in the art with both a motivation to carry out the
claimed invention and a reasonable expectation of success in
doing so. See In re Vaeck, 947 F.2d 488, 493, 20 USPQ2d 1438,
1442 (Fed. Cir. 1991); In re O’Farrell, 853 F.2d 894, 902, 7
USPQ2d 1673, 1680 (Fed. Cir. 1988).
The examiner has not established that the applied prior art
itself would have motivated one of ordinary skill in the art to
substitute Cook’s shipping container frozen cooling panels for
Christiansen’s electrical system for cooling and blowing cooled
air across food items. The examiner’s argument that replacement
of Christiansen’s electrical cooling system by Cook’s frozen
cooling panels would make it easier and more convenient for
consumers to use the server is not supported by any evidence or
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