Appeal No. 2005-1161 Page 8
Application No. 09/793,406
at least establish: (1) that there actually is a difference between the results obtained through the
claimed invention and those of the prior art and (2) that the difference actually obtained would
not have been expected by one skilled in the art at the time of invention.”(citations omitted)) and
In re Baxter Travenol Labs, 952 F.2d 388, 392, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991)(The
“difference in results” must be established as being between the claimed subject matter and the
closest prior art.).
Therefore the record as a whole supports the legal conclusion that the invention would
have been obvious.
CONCLUSION
To summarize, the decision of the Examiner to reject claims 1-10 and 17-20 under 35
U.S.C. § 103(a) is affirmed.
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