Appeal 2007-2235
Application 10/138,617
bioreactor of [Hudgins] for treating a contaminated gas stream for the known
and expected result of employing a bioreactor for treating biodegradable
waste as a biofiltration device as is suggested by the secondary references of
record” (id. at 6).
The Examiner acknowledges claim 1’s limitation that the landfill be at
least 1000 tons, but concludes that “in the absence of a showing of criticality
and/or unexpected results, it would have been obvious to one of ordinary
skill in the art to employ the landfill treatment method as suggested above to
any size or quantity of landfill mass while providing the required
biodegradation. . . [M]ere scaling up of a prior art process capable of being
scaled up, does not establish patentability in a claim to an old process so
scaled” (id.).
Appellant argues that “none of the cited references disclose or suggest
the element of biodegrading gaseous pollutants with a landfill” (Br. 11).
Appellant urges that “Hu[d]gins, Apel, and Kneer also do not provide a
suggestion or motivation to modify reference teachings to arrive at a method
of removing biodegradable gaseous pollutants comprising permeating
contaminated gases into a 1000+ ton landfill mass” (id. at 12; see also Reply
Br. 5).
We do not find this argument persuasive. Recently addressing the
issue of obviousness, the Supreme Court stated that the analysis under 35
U.S.C. § 103 “need not seek out precise teachings directed to the specific
subject matter of the challenged claim, for a court can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.” KSR Int'l v. Teleflex Inc., 127 S. Ct. 1727, 1741, 82 USPQ2d 1385,
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