Appeal 2007-1907
Reexamination Control No. 90/007,178
Patent 6,730,333 B1
1 50. Fourth, the Appellants urge that the cited references do not teach or
2 suggest all of the claim limitations on appeal. (Br. p. 16, ll. 3-4).
3 The Appellants’ Argument on Secondary Considerations
4 51. The Appellants urge that the Examiner failed to properly consider the
5 proffered evidence of commercial success. (Br., p. 25, ll. 9-10).
6 C. Discussion
7 Obviousness
8 A claimed invention is not patentable if the subject matter of the
9 claimed invention would have been obvious to a person having ordinary skill
10 in the art. 35 U.S.C. § 103(a); KSR Int’l Co. v. Teleflex Inc., 127 S. Ct.
11 1727, 82 USPQ2d 1385 (2007); Graham v. John Deere Co. of Kansas City,
12 383 U.S. 1 (1966).
13 Facts relevant to a determination of obviousness include (1) the scope
14 and content of the prior art, (2) any differences between the claimed
15 invention and the prior art, (3) the level of skill in the art and (4) any
16 relevant objective evidence of obviousness or non-obviousness. KSR,
17 127 S. Ct. at 1734, 82 USPQ2d at 1389, Graham, 383 U.S. at 17-18.
18 A person having ordinary skill in the art uses known elements and
19 process steps for their intended purpose. Anderson's-Black Rock, Inc. v.
20 Pavement Salvage Co., 396 U.S. 57, 90 S. Ct. 305, 163 USPQ 673 (1969)
21 (radiant-heat burner used for its intended purpose in combination with a
22 spreader and a tamper and screed); Sakraida v. AG Pro, Inc., 425 U.S. 273,
23 282, 96 S. Ct. 1532, 1537, 189 USPQ 449, 453 (1976) (the involved patent
24 simply arranges old elements with each performing the same function it had
10
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