Appeal No. 2005-1244 Page 8 Application No. 10/134,902 As to the examiner's belief that the three piece supporting leg of Lifetime and the two piece supporting leg of Sportcraft are "art recognized equivalents," we note that no evidence before us in this appeal supports that determination.3 The mere fact that both the three piece supporting leg of Lifetime and the two piece supporting leg of Sportcraft act as a support for a table tennis table does not, ipso facto, make them "art recognized equivalents." The classical test for equivalence was whether the structures perform substantially the same function in substantially the same way to obtain substantially the same result. See Perkin-Elmer Corp. v. Computervision Corp., 732 F.2d 888, 900, 221 USPQ 669, 679 (Fed. Cir.), cert. denied, 469 U.S. 857 (1984). In this case, the three piece supporting leg of Lifetime does not perform substantially the same function in substantially the same way to obtain substantially the same result as the two piece supporting leg of Sportcraft since the two piece supporting leg of Sportcraft acts to support two abutting table tennis table portions together while the three piece supporting leg of Lifetime supports a single table tennis table portion. In our view, while both the two piece supporting leg of Sportcraft and the three piece supporting leg of Lifetime support the table tennis table, the applied prior art contains no motivation, incentive, suggestion or teaching for an artisan to have modified Sportcraft so as to arrive at the claimed subject matter. 3The Wickman declaration would appear to be some evidence to the contrary.Page: Previous 1 2 3 4 5 6 7 8 9 10 NextLast modified: November 3, 2007