Appeal No. 2004-1815
Application No. 09/781,582 Page 21
argued, we note, as explained above, that Ness ‘289 reasonably
describes the opening size of each compartment as a result
effective variable for dispensing fluid through one opening and
dry food through the other via gravity. It is our view, that one
of ordinary skill in the art would have arrived at a size for
each opening of Ness “289 that would be encompassed by the claim
language upon routine experimentation. After all skill, and not
the converse, is presumed on the part of those practicing in the
art. See In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774
(Fed. Cir. 1985); In re Jacoby, 309 F.2d 513, 516, 135 USPQ 317,
319 (CCPA 1962). Thus, we shall affirm the examiner’s § 103(a)
rejection of claims 35-37, 50 and 51 over Ness ‘289 on this
record.
CONCLUSION
The decision of the examiner to reject claims 35-37, 50 and
51 under 35 U.S.C. § 103(a) over Ness ‘289 is affirmed. The
decision of the examiner to reject claims 1, 4-9, 13, 16, 47 and
48 under 35 U.S.C. § 102(b) as being anticipated by Stegath; to
reject claims 1-12, 16, 17, 19 and 48 under 35 U.S.C. § 102(b) as
being anticipated by Ness ‘561; to reject claims 1-9, 16-18, 47
and 48 under 35 U.S.C. § 102(b) as being anticipated by Ness
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