Appeal No. 2004-0065 Page 4
Application No. 09/642,585
Therefore, it would have been obvious to one with
ordinary skill in the art at the time the invention was made to
have modified Jeffrey’s apparatus for use in processing
packaging blanks by having a second conveyor arranged to
receive the blanks from the first conveyor and convey them
at a second velocity which is greater than the first velocity
and at a second even pitch which is different that the first
even pitch, as suggested by Focke, in order to ensure that
the blanks and/or packs have precisely defined spacing
between them in the region of a removal conveyor.
For the reasons aptly set forth by appellants in their brief and reply brief, we will
not sustain the examiner’s above-noted rejection of claims 1 through 11, 24 and 25
under 35 U.S.C. § 103(a) as being unpatentable over Jeffrey in view of Focke. Like
appellants, we are of the view that it would be antithetical to the teachings in Jeffrey to
make the modification therein urged by the examiner. In that regard, it is clear to us that
the method and apparatus for producing a gusseted container in Jeffrey expressly
teaches that the respective drive/feed belts (7, 8) in each of the folder/gluer modules (2,
3, 4) therein are driven “at a preselected common belt speed” (col. 7, line 56) so as to
facilitate advancement of the respective blanks (5) sequentially from the prefold module
(2) into the fold module (3) and subsequently into the final fold module (4). Simply
stated, absent hindsight derived from appellants’ own disclosure and claims, there is no
teaching or suggestion in the container or pack conveying arrangement seen in Focke
which would have made it obvious to one of ordinary skill in the art at the time of
appellants’ invention to modify the apparatus and method of Jeffrey so as to result in
appellants’ presently claimed subject matter. As our court of review indicated in In re
Fritch, 972 F.2d 1260, 1266, 23 USPQ2d 1780, 1784 (Fed. Cir. 1992), it is
impermissible to use the claimed invention as an instruction manual or "template" in
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