Sunday, November 25, 2012

Appellants lose on anticipation, obviousness in Ex parte Koh

The Appellants did not fare well in Ex parte Koh:

Based on the analysis above, we conclude that the Examiner did not
err in rejecting claims 64-69 for anticipation under 35 U.S.C. § 102(b), and
rejecting claim 63 for obviousness under 35 U.S.C. § 103(a).

Attorney argument does not substitute for evidence:

Lastly, we note that, aside from arguments of counsel, Appellants
have set forth no evidence which would overcome the Examiner’s stated
position. See Estee Lauder Inc. v. L’Oreal, S.A., 129 F.3d 588, 595 (Fed.
Cir. 1997) (“[A]rguments of counsel cannot take the place of evidence
lacking in the record.”).

KSR arises:

When there are a
finite number of known identified, predictable solutions (e.g., counter
incrementing or counter decrementing), ordinarily skilled artisans would
have had a good reason to pursue the known options within their grasp,
including incrementing, rather than decrementing, the stored program
correction counter in Suzuki. See KSR Int’l Co. v. Teleflex Inc., 550 U.S.
398, 421 (2007).


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