Appeal 2006-1400
Application 10/649,128
Moore in Figure 3 and Romero teach such conduits for drawstrings. Appellant has
provided no argument or evidence rebutting these conclusions of obviousness
made by the Examiner. Consequently, we affirm the standing rejections of claims
1-3 based on the disclosure of Moore and Spector, claims 9-13 based on the
disclosure of Moore, Spector, and Romero, claims 1-3 and 9-12 based on the
disclosure of Moore, Spector and Romero, and claims 4-8 based on the disclosure
of Moore, Spector and Kumasaka or Romero, Moore, Spector, and Kumasaka.
Appellant argues that the references cited, save for the reference to
Kumasaka, are from nonanalogous arts. It is apparent that the old standard for
analogous art has been put aside by the Supreme Court in KSR. As the court
explained, and as we quoted previously, when a work is available in one field of
endeavor, design incentives and other market forces can prompt variations of it
either in the same field or a different one. If a person of ordinary skill can
implement a predictable variation § 103 likely bars its patentability. KSR, 127
S.Ct. at 1740, 82 USPQ2d at 1396.
However, even under the old analogous art test, Romero, which is directed
to preventing precipitation and dirt from entering an exhaust pipe while the pipe is
not in use, is reasonably pertinent to the problem the claimed subject matter is
concerned with. Additionally, we note that both Romero and Moore are concerned
with protective coverings for vertically extending post-like objects in general. Due
to their particular shape it is our conviction that they are reasonably pertinent to the
particular problem which the present inventor was involved.
Concerning Appellant’s arguments regarding motivation to combine the
reference teachings, the teaching-suggestion-motivation test argued by Appellant
was identified by the Supreme Court as only one test for the obviousness of a
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