Appeal No. 2004-0070
Application No. 10/047,529
artisan, that teaches against use with lines forming a continuous electrically conductive
path without intermediate components between the first point and a second point, or
with “pre-assigned or static communications paths.” Feiner touts the advantages of the
system of the invention that allows greater data rates in a manner that would be
“transparent” to unrestricted network facility management. While Feiner is directed to a
system in which it is of no great consequence that the connections may vary over time,
Feiner clearly conveys to the artisan that the system would also work with a single,
preassigned line between network end-points. We thus are not persuaded that the
references “teaches away” from the instant invention.
“‘The use of patents as references is not limited to what the patentees describe
as their own inventions or to the problems with which they are concerned. They are
part of the literature of the art, relevant for all they contain.’” In re Heck, 699 F.2d 1331,
1333, 216 USPQ 1038, 1039 (Fed. Cir. 1983) (quoting In re Lemelson, 397 F.2d 1006,
1009, 158 USPQ 275, 277 (CCPA 1968)). Moreover, in a Section 103 inquiry “‘the fact
that a specific [embodiment] is taught to be preferred is not controlling, since all
disclosures of the prior art, including unpreferred embodiments, must be considered.’”
Merck & Co. v. Biocraft Labs., Inc., 874 F.2d 804, 807, 10 USPQ2d 1843, 1846 (Fed.
Cir. 1989) (quoting In re Lamberti, 545 F.2d 747, 750, 192 USPQ 278, 280 (CCPA
1976)).
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