Appeal 2007-3322
Application 09/947,094
16. None of Hochstein’s LEDs whose light output is measured is
disclosed as emitting light in a direction altered or different from the
direction of light emission from the rest of the LEDs.
17. The level of ordinary skill in the art is reflected by the content
of Rand, Hochstein, and Blalock.
E. Principles of Law
Obviousness is a legal determination made on the basis of underlying
factual inquiries including (1) the scope and content of the prior art; (2) the
differences between the claimed invention and the prior art; (3) the level of
ordinary skill in the art; and (4) any objective evidence of unobviousness,
Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966).
One with ordinary skill in the art is presumed to have skills apart from what
the prior art references explicitly say. See In re Sovish, 769 F.2d 738, 743,
226 USPQ 771, 774 (Fed. Cir. 1985). A person of ordinary skill in the art is
also a person of ordinary creativity, not an automaton. KSR International
Co. v. Teleflex Inc., 127 S.Ct. 1727, 1742, 82 USPQ2d 1385, 1397 (2007).
With respect to determining obviousness, the Supreme Court stated: “Rigid
preventive rules that deny factfinders recourse to common sense, however,
are neither necessary under our case law nor consistent with it.” Id.
F. Analysis
With respect to all claims except claim 31, the Applicants present the
same argument, i.e., that while all independent claims require a sampling
LED to emit light in a direction that is altered from a direction at which light
is emitted from the rest of the LEDs in a string of LEDs (claims 1, 11, 14
and 18) or an array of LEDs (claim 26), the prior art does not disclose or
suggest the same. With regard to all claims on appeal except for claim 31,
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