N Re Franz Wallner, 864 F.2d 149 (Fed. Cir. 1988)

DECISION

This is an appeal from the decision of the United States Patent and Trademark Office Board of Patent Appeals and Interferences (Board) rejecting claims 1-5 of Franz Wallner's patent application, Serial No. 579,391, under 35 U.S.C. §§ 102 and 103 (1982 & Supp. IV 1986). We affirm.

OPINION

The Board rejected Wallner's claim 1 under 35 U.S.C. § 102 as anticipated by figure 1 of Gilbert and under 35 U.S.C. § 103. It rejected claim 2 under section 103 as unpatentable over Gilbert, and rejected claims 3-5 as obvious over Gilbert and other prior art cited by the examiner. Upon request for reconsideration, the Board reviewed its decision but made no change.

We need not review the Board's section 102 rejection of claim 1 because we conclude that the Board's rejection for obviousness was correct.

We are not persuaded that the Board was incorrect in concluding, as a matter of law, that claims 1 and 2 are rendered obvious by Gilbert's disclosure, including what is shown in figures 3 and 4. The suggestion to modify Gilbert's figure 4 along the lines of figure 3, thus resulting in an open chamber which includes bores that terminate near an adjacent edge zone of the membrane, can be found in Gilbert itself.

Wallner acknowledges that the patentability of claims 3-5 stands or falls with claims 1 and 2 and does not argue the application of Gilbert in view of Orr, Jr. or Bisera et al. against the specific features recited in claims 3-5. Accordingly, since we find the Board's reasoning persuasive with regard to its determination that a prima facie case of obviousness exists as to claims 1 and 2 that has not been rebutted by Wallner, we also affirm the rejection of claims 3-5.