Appeal 2007-1325
Application 10/065,722
1 9. DeMars.
2 10. Aichert
3 11. Mueller.
4 12. Lane.
5 13. PTO bibliographic data sheet for the application on appeal.
6 14. Published Application 2003/0089714 A1.
7 15. Pending claims as reproduced in the Claims Appendix of
8 the Appeal Brief filed 26 June 2006.
9
10 C. Issues
11 A first issue on appeal is whether Dart has sustained its burden of
12 showing that the Examiner erred in rejecting the rejected claims on appeal as
13 being unpatentable under 35 U.S.C. § 103(a) over the prior art.
14 According to Dart, the first issue turns on (1) whether Freek and
15 Waterbury are "analogous art," (2) if so, whether there is a teaching,
16 suggestion or motivation to combine Freek and Waterbury, and (3) if so,
17 whether the combination of Freek and Waterbury "teaches" the claimed
18 invention.
19 What is not an issue in the appeal is whether the claimed invention
20 has been a commercial success. Dart has presented no evidence of
21 commercial success and accordingly has waived its opportunity to have
22 commercial success considered on appeal.
23 A second issue on appeal is whether the subject matter of claim 84
24 and claims which depend from claim 84 are unpatentable under 35 U.S.C.
25 § 112, second paragraph, as being indefinite. 37 C.F.R. § 41.50(b) (2006).
4
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