Appeal No. 95-2441
Application 07/987,211
of a continuing dispersion problem. As said in Diversitech
Corp. v. Century Steps Inc., 850 F.2d 675, 679,
7 USPQ2d 1315, 1318 (Fed. Cir. 1988):
The problem confronted by the inventor must be considered
in determining whether it would have been obvious to
combine
references in order to solve that problem.
While the incentive to apply a surfactant to Sibbald’s
and/or Iijima’s particles need not be the same as appellant’s
incentive to do so, the prior art must provide some reason for
persons having ordinary skill in the art to do what appellant
has done. Where, as here, the prior art teaches that the
particle floating and/or settling problems associated with
encapsulated bioactive substances presented to the rumen are
substantially eliminated by controlling particle density, we
see no reason why that teaching would have led persons having
ordinary skill in the art to further improve dispersibility.
A person having ordinary skill in the art “is not one who
undertakes to innovate, whether by . . . systematic research
or by extraordinary insights . . . .” Standard Oil Co. v.
American Cyanamid Co., 774 F.2d 448, 454,
227 USPQ 293, 298 (Fed. Cir. 1985).
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