Appeal No. 2006-0455 Page 6
Application No. 10/217,378
possibility that the contents of a tipped box will spill out.
The examiner (answer, page 8) additionally relies upon basic
physics, everyday intuition and established scientific
laws/principles underlying such intuition as the basis for a
suggestion to modify Matsui to arrive at the claimed invention.
From our review of the record, we find, for the reasons
which follow, that the examiner is essentially relying upon
common knowledge or common sense as a basis for establishing the
obviousness of claims 1-20 over Mitsui. Even if we agreed with
the examiner that it would have been obvious, through common
knowledge and common sense, to have tilted the device having the
optical drive and operating the optical drive while tilted, we
note that common knowledge and common sense are not the standard
for establishing obviousness. In In re Lee, 277 F.3d 1338, 1341,
61 USPQ2d 1430, 1432 (Fed. Cir. 2002) the Board held that “[t]he
conclusion of obviousness may be made from common knowledge and
common sense of a person of ordinary skill in the art without any
specific hint or suggestion in a particular reference.” As
stated by our reviewing court in deciding the case (In re Lee,
277 F.3d 1338, 1341, 61 USPQ2d 1430, 1432 (Fed. Cir. 2002)):
The foundation of the principle of judicial
deference to the rulings of agency tribunals is
that the tribunal has specialized knowledge and
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