Appeal No. 2002-1980
Application 09/264,769
Rather than repeat the positions of the appellant and the
examiner, reference is made to the brief and answer for the
respective details thereof.
OPINION
Of the claims on appeal, we sustain only the rejection of
independent claim 40 and reverse the rejection of claims 1-39.
The first stated rejection includes each of the independent
claims on appeal, claims 1, 13, 22, 30, 37 and 40. We reverse
the rejection of all of these claims except claim 40 for
essentially two reasons.
Our study of Ham leads us to conclude that this reference is
nonanalogous art as argued by appellant at pages 7, 10, 12, 14,
15 and 16 in the brief.
The test to determine whether the prior art is analogous
is: “(1) whether the art is from the same field of endeavor,
regardless of the problem addressed, and (2) if the reference is
not within the field of the inventor’s endeavor, whether the
reference still is reasonably pertinent to the particular problem
with which the inventor is involved.” In re Clay, 966 F.2d 656,
3
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