Appeal 2007-3669
Application 10/831,671
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 Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1740-41,
82 USPQ2d 1385, 1396 (2007) (quoting In re Kahn, 441 F.3d 977, 988,
78 USPQ2d 1329, 1336-337 (Fed. Cir. 2006)). See DyStar Textilfarben
GmBH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1361,
80 USPQ2d 1641, 1645 (Fed. Cir. 2006)(“The motivation need not be found
in the references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself.”); In re Bozek, 416 F.2d 1385, 1390, 163 USPQ
545, 549 (CCPA 1969)(“Having established that this knowledge was in the
art, the examiner could then properly rely, as put forth by the solicitor, on a
conclusion of obviousness ‘from common knowledge and common sense of
the person of ordinary skill in the art without any specific hint or suggestion
in a particular reference.’”); In re Hoeschele, 406 F.2d 1403, 1406-07,
160 USPQ 809, 811-12 (CCPA 1969) (“[I]t is proper to take into account
not only specific teachings of the references but also the inferences which
one skilled in the art would reasonably be expected to draw therefrom . . .”).
The analysis supporting obviousness, however, should be made explicit and
should “identify a reason that would have prompted a person of ordinary
skill in the relevant field to combine the elements” in the manner claimed.
KSR, 127 S. Ct. at 1739, 82 USPQ2d at 1396.
Appellants’ principal argument is that none of the references mention
the problems associated with the use of a mask with a single section of
apertures, or the need for a mask with a plurality of sections. Thus, there is
no teaching, suggestion, or motivation in the cited references as to how a
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