Appeal 2006-2165
Application 10/652,958
growth on the plastic bearing housing where such microbial growth is
undesirable, such as the food and beverage industries. Thus, contrary to
Appellant’s argument, the Examiner relies not on impermissible hindsight,
rather, he provides motivation for the combination of Kernes’, Blackburn’s
or Seabrook’s antimicrobial agent with Richardson’s plastic pillow block
bearing housing from the references and knowledge of one of ordinary skill
in the art. In re Rouffet, 149 F.3d 1350, 1357, 47 USPQ2d 1453, 1457-58
(Fed. Cir. 1998). Furthermore, a teaching, suggestion, or motivation to
combine the relevant prior art teachings does not have to be found explicitly
in the prior art, as the teaching, suggestion, or motivation may be implicit
from the prior art as a whole. In re Kahn, 441 F.3d 977, 988, 78 USPQ2d
1329, 1336; cited with approval in KSR Int’l Co. v. Teleflex, Inc., 127 S. Ct.
1727, 1741, 82 USPQ2d 1385, 1396 (2007).
Regarding Appellant’s argument that his statement on page 13 of the
Specification is not an admission, we interpret Appellant’s page 13
disclosure, like Appellant, as stating that it is known to one of ordinary skill
in the art that an antimicrobial agent added to a polymeric material prior to
injection molding retains its antimicrobial nature after the injection molding
process (Br. 12). However, as discussed below, such an interpretation
reinforces the Examiner’s position that the claimed invention would have
been obvious to one of ordinary skill in the art.
The Examiner’s position is that it would have been obvious in view of
Kernes’, Blackburn’s or Seabrook’s use of antimicrobial agents in plastics to
incorporate an antimicrobial agent in Richardson’s plastic bearing housing to
inhibit microbial growth (Answer 4). Appellant’s disclosure that it is known
to one of ordinary skill in the art to add antimicrobial agent prior to injection
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