Appeal 2006-3265
Application 10/047,670
for a flattened tube of the type discussed by Dalo, Ryan, and Ando, for
example. Appellants argue that the compression involved in the primary
references would not be possible with flattened tubes, which do not have the
same hoop strength and resilience as round tubes, because the flattened tubes
would begin to collapse under the pressure (Appeal Br. 6) but provide no
evidence that this is the case. An artisan must be presumed to know
something about the art apart from what the references disclose (see In re
Jacoby, 309 F.2d 513, 516, 135 USPQ 317, 319 (CCPA 1962)) and the
conclusion of obviousness may be made from “common knowledge and
common sense” of the person of ordinary skill in the art (see In re Bozek,
416 F.2d 1385, 1390, 163 USPQ 545, 549 (CCPA 1969)). Moreover, skill is
presumed on the part of those practicing in the art. See In re Sovish, 769
F.2d 738, 743, 226 USPQ 771, 774 (Fed. Cir. 1985). “A person of ordinary
skill is also a person of ordinary creativity, not an automaton.” KSR Int’l.
Co. v. Teleflex Inc., 127 S.Ct. 1727, 1742, 82 USPQ2d 1385, 1397 (2007).
Such a person would have understood that the deformation-causing
compression of Kocher’s technique (Kocher 2, col. 1, ll. 43-49; Fig. 1) and
the lock ring bite of Turner’s technique (Turner, col. 3, l. 68 to col. 4, l. 7)
must not exceed the force or deformation that the tube can withstand without
collapse or damage and would have been able to design the tube with the
necessary wall thickness and other structural supports to avoid collapse in a
coupling of the type taught by Kocher or Turner.
As for Appellants’ contention that the primary references are not
reasonably pertinent to the particular problem with which Appellants were
concerned, because they are not directed to flattened heat exchanger tubes
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