Appeal No. 2006-1880
Application No. 10/064,363
Because Appellant has failed to demonstrate that the functional
characteristics of his claimed invention are not inherent in the
structure disclosed by Scherzinger, we affirm the rejection of
the claims under 35 U.S.C. § 102.
II. Whether the Rejection of Claims 1, 4, and 6 Under
35 U.S.C. § 103 is proper?
It is our view, after consideration of the record before us,
that the evidence relied upon and the level of skill in the
particular art would have suggested to one of ordinary skill in
the art the invention as set forth in claims 1, 4, and 6.
Accordingly, we affirm.
In view of the above discussion, it is our view, that since
Scherzinger discloses all that is claimed, Ebbert is not
necessary for a proper rejection under 35 U.S.C. § 103 of
representative claim 1. A disclosure that anticipates under
35 U.S.C. § 102 also renders the claim unpatentable under
35 U.S.C. § 103, for “anticipation is the epitome of
obviousness.” Jones v. Hardy, 727 F.2d 1524, 1529, 220 USPQ 1021,
1025 (Fed. Cir. 1984). See also In re Fracalossi, 681 F.2d 792,
794, 215 USPQ 569, 571 (CCPA 1982); In re Pearson, 494 F.2d 1399,
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