Appeal 2007-1268
Application 10/177,845
1734, 82 USPQ2d 1385, 1391 (2007). "If a court, or patent examiner,
conducts this analysis and concludes the claimed subject matter was
obvious, the claim is invalid under § 103." Id. at 1734, 82 USPQ2d at 1391.
Certain subject matter is disqualified from precluding patentability
under § 103. 35 U.S.C. § 103(c). In particular, § 103(c) provides that:
Subject matter developed by another person,
which qualifies as prior art only under one or more
of subsections (e), (f), and (g) of section 102 of
this title, shall not preclude patentability under this
section where the subject matter and the claimed
invention were, at the time the claimed invention
was made, owned by the same person or subject to
an obligation of assignment to the same person.
35 U.S.C. § 103(c)(1).
ANALYSIS
Appellants contend that Examiner erred in rejecting claims 1-21 under
35 U.S.C. § 103(a). Reviewing the findings of facts cited above, we do not
agree. In particular, we find that the Examiner made a prima facie showing
of obviousness with respect to claims 1-21 and Appellants failed to meet the
burden of overcoming that prima facie showing.
Appellants have not argued the merits of the rejection. Instead,
Appellants' sole argument is that Ohkado is not a proper reference and
therefore it cannot be used to render obvious the claimed subject matter.
Specifically, Appellants argue that Ohkado is disqualified as reference under
35 U.S.C. § 103(a) by 35 U.S.C. § 103(c) because Ohkado is prior art under
35 U.S.C. § 102(e), was invented by a different inventive entity than the
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