Appeal No. 2003-0625 Page 6
Application No. 09/954,729
any dye known to be suitable for dying a poly(urethane-urea) (Billingsley’s intermediate
layer) would not adversely affect the properties of the retroreflective article. Such a dye
is Maeda’s reactive dye (col. 4, lines 12-14; col. 5, lines 4-5). We note that for a prima
facie case of obviousness to be established, all that is required is a reasonable
expectation of success, not absolute certainty. See O’Farrell, 853 F.2d at 904, 7
USPQ2d at 1681.
The appellant argues that because Maeda was published approximately 20
years before Billingsley’s filing date, Billingsley’s silence regarding the use of reactive
dyes is good evidence that the use of such dyes as Billingsley’s dye would not have
been obvious to one of ordinary skill in the art (brief, page 8). This argument is not
convincing because obviousness is determined based on what would have been
obvious to the hypothetical person of ordinary skill in the art, rather than to particular
individuals. See Kimberly-Clark Corp. v. Johnson & Johnson, 745 F.2d 1437, 1454,
223 USPQ 603, 614 (Fed. Cir. 1984).
The appellant argues that Maeda, which is in the field of preparing colored
synthetic leather, is nonanalogous art with respect to the appellant’s claimed invention,
which is in the field of preparing retroreflective articles that are launderably durable
(brief, page 8). The appellant relies (brief, page 10; reply brief, page 2) upon the
statements in the Billingsley affidavit that “in the past 15 or more years of working in the
field of producing retroreflective articles, I have not - nor am I aware of another person
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