Appeal 2007-1907
Reexamination Control No. 90/007,178
Patent 6,730,333 B1
1 references in his exposition of the rejection. Rather, the question to be
2 resolved under § 103 depends on what the prior art teaches or suggests and
3 whether what the prior art teaches or suggests would have rendered what is
4 claimed unpatentable. In re Albrecht, 579 F.2d 92, 94, 198 USPQ 208, 209,
5 210 (CCPA 1978); In re Bush, 296 F.2d 491, 496, 131 USPQ 263, 267
6 (CCPA 1961)
7 We are therefore not persuaded by this argument.
8 The Secondary Considerations
9 The Appellant urges that the Examiner failed to consider its evidence
10 of non-obviousness. The Appellant alleges that XanGo™ juice sold
11 $130,000.000 in gross sales in its first two years of business, and the
12 Examiner improperly failed to consider the information by applying an
13 erroneous nexus test.
14 In 1966, the Supreme Court in Graham v. John Deere Co., 383 U.S.1,
15 148 USPQ 459 (1966) interpreted and applied section 103, stating:
16 Under 103, the scope and content of the prior art are to be
17 determined; differences between the prior art and the claims at
18 issue are to be ascertained; and the level of ordinary skill in the
19 pertinent art resolved. Against this background, the
20 obviousness or nonobviousness of the subject matter is
21 determined. Such secondary considerations as commercial
22 success, long felt but unsolved needs, failure of others, etc.,
23 might be utilized to give light to the circumstances surrounding
24 the origin of the subject matter sought to be patented. 383
25 U.S.1, 17-18, 148 USPQ 459, 467 (1966).
26
23
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