Appeal No. 2002-1798
Application 09/238,804
must always be considered, when present and timely presented, as
part of the obviousness determination, Stratoflex Inc. v.
Aeroquip Corp., 713 F.2d 1530, 1538-39, 218 USPQ 871, 879 (Fed.
Cir. 1983). The existence of objective evidence need not be
conclusive. Ashland Oil, Inc. v. Delta Resins & Refractories,
Inc., 776 F.2d 281, 306, 227 USPQ 657, 674 (Fed. Cir. 1985).
Appellants submitted a report by Speed Measurement
Laboratories, Inc. (SML) dated July 11, 2000, in the Response
Under 37 C.F.R. § 1.116 (Paper No. 11) received October 2, 2000.
In the Advisory Action (Paper No. 13) entered November 7, 2000,
the examiner merely checked the box stating that "The affidavit,
exhibit or request for reconsideration has been considered but
does NOT place the application in condition for allowance
because:" and filled in the blank that "The examiner still
believes that the independent claims 26 and 31, as stands, are
not patentably distinguished over the obviousness rejection as
taught by Strickland in view of Haeri." The examiner did not
provide a written explanation addressing the merits of the
SML report as part of the obviousness analysis. Appellants also
filed a Declaration of Steven F. Hocker Under 37 CFR § 1.132,
with an attached Exhibit 1 showing a brochure of a speed
monitoring awareness trailer manufactured and sold by Kustom, the
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