Appeal No. 2005-1982 5
Application No. 10/155,006
present such evidence. Attorney argument in the brief does not suffice. In re Lange,
644 F.2d 856, 862-63, 209 USPQ 288, 293 (CCPA 1981).
Second, in actuality, there is no structural difference between the dryer of Foote
and that claimed. The so called “difference” is merely a change in the orientation of the
dryer of Foote by rotating it 90°. Once the dryer of Foote is so rotated, the side 14 with
the inlet becomes the front of the housing, the bottom 16 with the outlet becomes the
back of the housing, and the rollers are in the required top and bottom arrangement.
The structure is the same, only the orientation changes. That the dryer is described in
Foote as in a different orientation during use is of no matter: How an apparatus is
intended to be employed does not differentiate the claimed apparatus from a prior art
apparatus satisfying the structural limitations of what is claimed. Ex parte Masham, 2
USPQ2d 1647, 1648 (Bd. Pat. App. & Int. 1987); see also Schreiber, 128 F.3d at 1477,
44 USPQ2d at 1431 and cases cited therein. We note that lack of novelty is the
ultimate or epitome of obviousness. In re Fracalossi, 681 F.2d 792, 794, 215 USPQ
569, 571 (CCPA 1982).
Turning to the rejection of claim 9 over Smith, the Examiner finds all the
structures of the claim in the apparatus of Smith, the difference merely lying, again, in
the orientation of the apparatus (Answer, p. 5). The Examiner has established a prima
facie case of obviousness.
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