Appeal No. 2004-2284
Application 09/832,873
would then provide an objective basis for showing that the invention, although apparently
obvious, was in law nonobvious. [Citations omitted.] For obviousness under § 103, all that is
required is a reasonable expectation of success. [Citations omitted.]”).
Accordingly, in view of the examiner’s prima facie case of obviousness, we again
evaluate all of the evidence of obviousness and nonobviousness based on the record as a whole,
giving due consideration to the weight of appellants’ arguments in the brief and reply brief. See
generally, In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992); In re
Piasecki, 745 F.2d 1468, 1472, 223 USPQ 785, 788 (Fed. Cir. 1984).
Appellants’ contention that disc disperser 1 of Egenes is a grinder and thus the main
disperser (brief, e.g., pages 7-8; reply brief, e.g., pages 2-4), is directed to the first embodiment
of this reference wherein that is so, but does not address the relied on second embodiment where
Egenes discloses that disc disperser 1 is a pre-disperser and disc disperser 8 is the grinder. In
this respect, appellants’ arguments that one of ordinary skill would not have used the apparatus
of Riquet Fig. 1, described as a “kneading” device used to “knead/mix stock,” to “replace
grinder 1” of Egenes (brief, pages 8 and 9-13) also falls.
Appellants submit that the pulper of Riquet Fig. 1 is not a mallet roll, contending that
“[w]hile structurally similar, the kneading devices (as well as the disperser) of [Riquet] are
structured to knead the stock suspension, i.e., to massage or mix the stock, whereas a mallet roll,
as disclosed in the instant application, is directed to breaking up or apart a plug of highly
consistent stock,” and that the prior art device “is intended to operate on different material and in
a distinct manner from the mallet roll recited in at least independent claim 1” (brief, pages 9 and
16). We do not agree.
The “mallet roll” is defined by claim 1 as we have interpreted that claim (see above p. 4).
We find that the pulper of Riquet Fig. 1 meets all of the claim limitations, including the presence
of objects extending from the rotating shaft which can act as “mallets” and stationary objects
attached to the cylinder housing which can act as “peripheral impacts sections,” which two sets
of objects “cooperate” to break-up or disperse the stock when the stock passes therebetween,
forming a dispersion or paste of particulate stock which would evenly flow. Indeed, we find no
claim limitation in claims 1, 6 (brief, page 17) and 13 which specifies “a plug of highly
consistent stock” with respect to “fibrous paper stock” or “highly consistent coarse fibrous
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