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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