Appeal No. 2004-0415
Application No. 09/764,743
in the art at the time of the appellant’s invention. See In re
Nomiya, 509 F.2d 566, 570-71, 184 USPQ 607, 611-12 (CCPA 1975)(an
applicant’s admitted prior art may be used in determining the
patentability of a claimed invention); see also In re Davis, 305
F.2d 501, 503, 134 USPQ 256, 258 (CCPA 1962).
Here, we observe that claim 1 on appeal is written in Jepson
format. Ex parte Jepson, 243 Off. Gaz. Pat. Off. 525 (Comm’r
Pats. 1917). Thus, the subject matter recited in the preamble of
appealed claim 1 is impliedly admitted to be old in the art. In
re Ehrreich, 590 F.2d 902, 909, 200 USPQ 504, 510 (CCPA 1979); In
re Aldrich, 398 F.2d 855, 857, 158 USPQ 311, 312 (CCPA 1968).
Specifically, the appellants impliedly admit that it was known at
the time of the invention
a shopping cart having a basket having a front opposite
a rear and forming an upper opening circumscribed by an
upper peripheral rim, a handle supported at the rear,
and said cart rolled and supported on a pair of
laterally rotatable, front castor wheels opposite a
pair of non-pivoting rear wheels . . . .
The appellants also have not challenged the examiner’s official
notice that such shopping cart is well known. Compare the
Answer, pages 3 and 4 with the Brief in its entirety. Allegedly,
the appellants’ invention involves an improvement in the
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