Appeal 2007-3462
Application 11/172,223
1 When a work is available in one field of endeavor, design
2 incentives and other market forces can prompt variations of it,
3 either in the same field or a different one. If a person of
4 ordinary skill can implement a predictable variation, § 103
5 likely bars its patentability. For the same reason, if a technique
6 has been used to improve one device, and a person of ordinary
7 skill in the art would recognize that it would improve similar
8 devices in the same way, using the technique is obvious unless
9 its actual application is beyond his or her skill. KSR, at 82
10 USPQ2d 1396.
11
12 Based on this guidance, and in light of the fact that Black describes
13 that the general knowledge of those skilled in the art was not limited to
14 monitoring the temperature of a particular object, Applicants’ arguments are
15 not persuasive.
16 Applicants also argue that even if Black were analogous art, there is
17 no suggestion in Stanescu to replace the Ballman LED with the Black
18 transponder 200 (FF 26(b)). The Supreme Court, in KSR cautioned against
19 applying the Teaching-Suggestion-Motivation (TSM) test as a rigid rule
20 limiting the obviousness inquiry. KSR, 82 USPQ2d at 1396. A flexible
21 approach should be taken. In any event, the Examiner provided a reason for
22 combining the Stanescu, Black and Ballman. Specifically, the Examiner
23 reasoned that it would have been obvious to replace the Ballman visual
24 temperature indicator with the Black RFID tag as further taught by Stanescu,
25 so as to facilitate automated monitoring and enhance adaptability of the
26 device (FF 21). Applicants have demonstrated no error in this rationale.
27 One of ordinary skill in the art knew at the time of the invention that
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