Appeal No. 96-3404
Application 08/145,775
reference (see In re Keller, at 642 F.2d 425, 208 USPQ 881)
and the artisan is not compelled to blindly follow the
teaching of one prior art reference over the other without the
exercise of independent judgment (Lear Siegler, Inc. v.
Aeroquip Corp., 733 F.2d 881, 889, 221 USPQ 1025, 1032 (Fed.
Cir. 1984). In our view, a combined consideration of Waters
and Martin would have fairly suggested to one of ordinary
skill in this art to utilize in the concrete tetrahedron of
Waters a filler of tire chips as taught Martin in order to
achieve Martin’s expressly stated advantage of providing an
environmental benefit by using recyclable rubber. Although
the examiner has additionally relied on the teachings of
Kiselewski, we see no need to resort to the teachings of this
references.
From our perspective, the combined teachings of Waters and
Martin establish the obviousness of the subject matter defined
by claim 2 within the meaning of 35 U.S.C. § 103.
Considering next the rejection under 35 U.S.C. § 103 of
claims 3, 10 and 16 as being unpatentable over Waters in view
of Viner, the examiner has taken the position that it would
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