Ex Parte Dadbeh - Page 8




              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.                           







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