Appeal 2007-2915
Application 10/151,637
[26] Finally, Appellants contend that the Examiner has engaged in
hindsight reconstruction of the claimed invention because he has not
identified what reference or knowledge basis supports his conclusion
that a container meeting the structural limitations of the container of
claim 17 “would have been expected” to allow for easy release and
removal of a food from the container absent evidence or arguments to
the contrary (Reply Br. at 7).
III. Obviousness
A claimed invention is not patentable if its subject matter would have
been obvious to a person of ordinary skill in the art. 35 U.S.C. § 103(a);
KSR Int'l Co. v. Teleflex, Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007);
Graham v. John Deere Co. of Kansas City, 383 U.S. 1 (1966). Facts
relevant to a determination of obviousness include (1) the scope and content
of the prior art, (2) any differences between the claimed invention and the
prior art, (3) the level of ordinary skill in the prior art, and (4) relative
objective evidence of obviousness or non-obviousness. KSR, 127 S.Ct. at
1734, 82 USPQ2d at 1389; Graham, 383 U.S. at 17-18. A person of
ordinary skill in the art uses known elements and process steps for their
intended purpose. Anderson's-Black Rock, Inc. v. Pavement Salvage Co.,
396 U.S. 57, 90 S.Ct. 305 (1969); Sakraida v. AG Pro, Inc., 425 U.S. 273,
282, 96 S.Ct. 1532 (1976); Dunbar v. Myers, 4 Otto (94 U.S.) 187, 195
(1876). Furthermore, to render an invention obvious, the prior art does not
have to address the same problem addressed by a patent applicant. KSR, 127
S.Ct. at 1741-42; In re Dillon, 919 F.2d 688, 16 USPQ2d 1897 (Fed. Cir.
1990) (en banc); In re Kemps, 97 F.3d 1427, 1430, 40 USPQ2d 1309, 1311
(Fed. Cir. 1996).
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