Appeal No. 2004-1836 Page 6
Application No. 09/590,815
a planar surface" is not present in claims 33 and 34. Likewise, the argued limitation of
claim 8 of apertures in both the bottom portion and the top portion is not present in
claims 33 and 34. Thus, the appellant has not presented any argument as to why the
subject matter of claims 33 and 34 are allowable over the combined teachings of Saad
and Burshtain as applied in the rejection under appeal.
Objective evidence of nonobviousness must always be considered, when
present, as part of the obviousness determination. Stratoflex, Inc. v. Aeroquip Corp.,
713 F.2d 1530, 1538-39, 218 USPQ 871, 879 (Fed. Cir. 1983). A "nexus" is required
between the merits of the claimed invention and the objective evidence in order for the
evidence to be given substantial weight in the obviousness determination. Stratoflex,
713 F.2d at 1539, 218 USPQ at 879 ("A nexus is required ... if that [objective] evidence
is to be given substantial weight...."); W.L. Gore & Associates, Inc. v. Garlock, Inc., 721
F.2d 1540, 1555, 220 USPQ 303, 314 (Fed. Cir. 1983), cert. denied, 469 U.S. 851
(1984) ("The objective evidence of nonobviousness ... may in a given case be entitled to
more weight or less, depending on its nature and its relationship to the merits of the
invention."). See also In re Felton, 484 F.2d 495, 501, 179 USPQ 295, 299 (CCPA
1973) ("A nexus between the merits of the invention and the evidence offered must be
established before that evidence becomes relevant to the question of obviousness.") A
"nexus" is a legally and factually sufficient connection between the objective evidence
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