Appeal 2007-2069
Application 10/723,000
having ordinary skill in the art that the upper end of any strap holding Seal’s
auxiliary mounting stirrup may be attached to a Western or English Saddle
at any position on the saddle relative to the primary or normal riding stirrup
which attachment position is consistent with safe mounting. Therefore, in
the absence of a showing of unexpected results, the invention Appellant
claims would have been obvious to a person having ordinary skill in the art.
Appellant appears to argue that the elimination of whatever leg-
crossing problems might be associated with Seal’s invention is a result
sufficiently unpredictable to warrant the patentability of the claimed
invention over the invention Seal describes and suggests. We think not. As
the Supreme Court explained, “[I]f a technique has been used to improve
one device, and a person of ordinary skill in the art would recognize that it
would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond that person’s skill.” KSR at
1734, 82 USPQ2d at 1391.
Appellant urges that the Examiner's silence as to the evidence (frames
taken from a CD video submitted after the final rejection1) requires reversal
(Reply Brief filed 9 September 2005, at 2.) This argument lacks merit.
Even accepting Appellant's characterizations of what the frames show, the
crossing of the legs required when mounting the prior art assembly and the
absence of crossing of the legs when mounting the claimed invention result
from the relative positions of the auxiliary stirrups to the primary stirrups.
The weight of the evidence of record indicates that the different relative
positions of the auxiliary stirrup to the primary stirrup and the benefits
derived therefrom would have been predictable to persons having ordinary
1 Appellant appears to suggest that the Examiner did not view the CD video.
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