Appeal 2007-2121
Application 10/705,083
stake via the driver into the ground and would further have practiced this
method with the stake and driver of Smith modified as suggested by the
other applied references.
Accordingly, we are of the opinion that prima facie one of ordinary
skill in this art routinely following the combined teachings of Smith, Selby,
Clarke, Gipp, and Roger and further with Anglea would have reasonably
arrived at the claimed invention encompassed by claims 1, 9, and 14,
including all of the limitations thereof arranged as required therein, without
recourse to Appellant’s Specification. See, e.g., KSR Int’l Co. v. Teleflex,
Inc., 127 S.Ct. 1727, 1739, 82 USPQ2d 1385, 1395 (2007) (a patent
claiming a combination of elements known in the prior art is obvious if the
improvement is no more than the predictable use of the prior art elements
according to their established functions); Kahn, 441 F.3d at 985-88,
78 USPQ2d at 1334-337; Pro-Mold & Tool Co. v. Great lakes Plastics Inc.,
75 F.3d 1568, 1573, 37 USPQ 1626, 1629-630 (Fed. Cir. 1996) (“In this
case, the reason to combine [the references] arose from the very nature of the
subject matter involved, the size of the card intended to be enclosed.”); In re
Gorman, 933 F.2d 982, 986-87, 18 USPQ2d 1885, 1888-889 (Fed. Cir.
1991) (“The extent to which such suggestion [to select elements of various
teachings in order to form the claimed invention] must be explicit in, or may
be fairly inferred from, the references, is decided on the facts of each case, in
light of the prior art and its relationship to the applicant’s invention.”); In
re Dow Chem. Co., 837 F.2d 469, 473, 5 USPQ2d 1529, 1531 (Fed. Cir.
1988);3 In re Keller, 642 F.2d 413, 425, 208 USPQ 871, 881 (CCPA 1981);4
3 The consistent criterion for determination of obviousness is
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