Appeal No. 2007-0737
Application No. 10/290,606
which the deformable portion is flexible, while the rim portion is rigid, albeit
comprised of the same material. However, the prior art teaches that the
deformable and rim portions may be formed of different materials. In Ellis,
the “rigid” cutter or ring (11) is sealed to the “flexible” deformable
diaphragm (p. 1, ll. 25-55). These parts perform the same function of the
rigid and flexible portions of the DeWitt and Donovan containers. Thus, the
skilled worker would have considered a construct made of two different
materials, each having different rigidity, interchangeable with a construct
made of the same material, but having portions of different rigidities.
Finally, Appellant argues that “[t]he Ellis patent expired many years
ago, therefore anyone could still have marketed a product for many years.
The fact there is no product on the market that solves the problem which
Applicant’s invention solves is evidence of” the non-obviousness of the
claimed invention (Reply Br. 7). As we understand it, Appellant is asserting
a long-felt need, i.e., a recognized problem existed in the art for a long time
without solution.
We do not find this argument persuasive because no objective
evidence has been submitted to support it. “[P]recedent requires that the
applicant submit actual evidence of long-felt need, as opposed to argument.
This is because ‘[a]bsent a showing of long-felt need or the failure of others,
the mere passage of time without the claimed invention is not evidence of
nonobviousness.’ Iron Grip Barbell Co. v. USA Sports, Inc., 392 F.3d 1317,
1325 (Fed. Cir. 2004); accord In re Wright, 569 F.2d 1124, 1127 (C.C.P.A.
1977).” Kahn, 441 F.3d at 990-91, 78 USPQ2d at 1338-39.
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