Appeal 2007-2537
Application 11/170,468
1 Examiner’s findings is insufficient to demonstrate that the Examiner erred in
2 relying on the description found in the Specification as prior art. By using
3 the term “Brief Description of Prior Developments” there is a presumption
4 that the described subject matter is “prior art” absent an express denial by
5 Applicants. Applicants’ argument that the attorney does not know if the
6 labels were on sale more than a year, or that there has been no admission that
7 the labels are “analogous” prior art are not sufficient to deny the truth of the
8 apparent admissions.5 Based on the record before us, the Examiner’s finding
9 that paragraph 0004 is prior art has not been demonstrated to be in error.
10 Therefore, we accept the statements made in paragraph 0004 as being
11 admissions of known prior art.
12 In any event, the Examiner found that Laske, Weibe and Ko describe
13 what the admitted prior art does – that temperature labels and paints were
14 known. Applicants exhaust much effort in explaining why each individual
15 reference alone fails to meet the claimed invention (FF 20(b)-(d)). Attacking
16 references individually, when the rejection is based on a combination of
17 references is not particularly helpful. Nonobviousness cannot be established
18 by attacking the references individually where the rejection is based upon
19 the teachings of a combination of references. See In re Merck & Co.,
20 800 F.2d 1091, 1097, 231 USPQ 375, 380 (Fed. Cir. 1986).
is similar to claims 6-8, which Applicants include in Group I.
5 Applicants are reminded of their duty to disclose information material to
patentability. 37 CFR § 1.56.
10
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