Appeal 2006-3386
Application 10/448,569
SECOND ISSUE
Appellant contends the Examiner erred in rejecting claims 3 and 4 as
obvious in view of McQueen, because McQueen does not teach or suggest using a
first treatment to render a gopher unconscious and using a second treatment, after
the first, to kill the gopher (Br. 8-10). The Examiner found that McQueen teaches
a first step of destabilizing the pest, wherein being unconscious is clearly being
destabilized, and a second step of applying a toxic agent to kill the pests (Answer
4). The issue before us is whether Appellant has shown that the Examiner erred in
finding claims 3 and 4 obvious in view of McQueen.
FINDINGS OF FACT
We find the following facts by a preponderance of the evidence:
1. McQueen discloses a crawling pest eliminator system for eliminating
cockroaches, ants, and spiders from residential and commercial structures
(McQueen, col. 1, ll. 6-10).
2. McQueen discloses that the system is used to apply a flushing agent
from a first aerosol canister 70 onto a treatment surface to cause the crawling pests
to be flushed out of cracks (McQueen, col. 2, ll. 55-62).
3. McQueen discloses that a vacuum motor 26 is then turned on to
suction the pests up through a vacuum hose 46 into a recovery bag 30 (McQueen,
col. 2, l. 62 – col. 3, l. 3).
4. McQueen discloses that after the pests and their eggs have been
vacuumed up, the vacuum motor 26 is turned off and a spray gun 96 is used to
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