Appeal No. 2004-1671
Application No. 09/905,024
defined by two counter rotating conveyor belts extending along the
entire transport path, i.e., the opening, stamping and closing
stations. Winn, for example, employs a chain 4 and a pad 5, rather
than an adjustable transport conveyor, to transport cigarette
package cartons through opening, stamping and closing stations
having particular arrangements of devices for carrying out opening,
stamping and closing functions. See column 3, lines 16-68.
Although Lam, Reichert and Baker ‘766 teach employing dual conveyor
belts either in a closing station for containers or in a stamping
station for cigarette packages as asserted by the examiner, they
are silent as to using the claimed adjustable first and second
counter rotating conveyor belts along the entire transport path,
especially the path along the opening station. Thus, on this
record, we are constrained to agree with the appellant that the
examiner has not demonstrated that “the prior art as a whole” would
have suggested the desirability, and thus the obviousness, of using
the claimed adjustable first and second counter rotating conveyor
belts along the entire transport path. See In re Lee, 277 F.3d
1338, 1343-44, 61 USPQ2d 1430, 1434 (Fed. Cir. 2002). (“This
factual question of motivation is material to patentability, and
could not be resolved on subjective belief and unknown
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