Appeal 2007-0492
Application 10/810,960
1 E. Discussion
2 Appellants do not dispute that Okamoto and St-Pierre fail to teach any feature
3 recited in independent claims 1 and 27. Rather, Appellants argue that the combination of
4 an oxygen-enrichment device based on an oxygen-selective membrane that requires a
5 pressure of at least two atmospheres into Okamoto's disclosed (single) atmospheric
6 pressure system would result in an inoperative device. (Brief at 6–7.) Appellants argue
7 further that such a result indicates that the references "teach away" from the proposed
8 combination, and that the Examiner's rejections based on Okamoto, St-Pierre, and
9 additional references, should be reversed. (Brief at 11.)
10 We are not persuaded. Appellants have not provided any basis that makes
11 plausible their implicit theory that one skilled in the art would have bodily incorporated
12 an oxygen-selective membrane suggested by St-Pierre into the air delivery system of
13 Okamoto without the paraphernalia needed to make the selective membrane work. It has
14 long been recognized that such blind combinations are not the proper test of obviousness.
15 Keller, 642 F.2d at 425, 208 USPQ at 881. To put it another way, Appellants have not
16 come forward with any evidence that those of ordinary skill in the art would have read
17 Okamoto and St-Pierre as narrowly as Appellants implicitly urge, i.e., as being so limited
18 in their teachings that the variation of operating conditions would not have occurred to
19 one of ordinary skill in the art. On the contrary, we find that the disclosures of Okamoto
20 and St-Pierre indicate that the level of ordinary skill encompasses rather sophisticated
21 fluid handling technology, e.g., steam-reforming of methanol (Okamoto at col. 2,
22 ll. 48-50), and hydrogen gas purification using palladium "membranes" (id. at col. 3,
-17-
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