Appeal 2006-3343
Application 10/372,564
1 made to combine the non-stretchy polyester pet bed outer covering of
2 Denesuk with Chamberlain’s fitted sheet.
3 The Appellant additionally urges that interfacing fabric is known only
4 for purses, draperies, craft projects, buttonholes and waistbands but such
5 substitution “is clearly not suitable for the purpose intended of the bed sheet
6 for human occupancy of Chamberlain.” (Br. p. 13, l. 4-8).
7 This contention is without merit. First, the Appellant has put forth no
8 persuasive evidence that interfacing fabric is not suitable for the bed sheet of
9 Chamberlain. We have only attorney argument on this point, which is not
10 evidence. Second, as pointed out by the Examiner, pets have been known to
11 sleep on twin or queen sized beds (Answer, p. 4, ll. 1-6). Thirdly, the
12 Appellant has stated that interfacing fabric is known in upholstery
13 (Specification, p. 6, l. 3), which contradicts the Appellant’s more limited
14 assertion.
15 The Appellant next urges, inter alia, that the prior art must suggest the
16 desirability of the claimed invention. (Brief, p. 13, l. 9 - p. 18, l. 25). This
17 restrictive viewpoint on the standard of obviousness has been deemed
18 incorrect by the United States Supreme Court in KSR v. Teleflex.
19 When a work is available in one field of endeavor, design incentives
20 and other market forces can prompt variations of it, either in the same
21 field or a different one. If a person of ordinary skill can implement a
22 predictable variation, §103 likely bars its patentability. For the same
23 reason, if a technique has been used to improve one device, and a
24 person of ordinary skill in the art would recognize that it would
25 improve similar devices in the same way, using the technique is
26 obvious unless its actual application is beyond his or her skill.
27 Sakraida and Anderson's-Black Rock are illustrative—a court must
28 ask whether the improvement is more than the predictable use of prior
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