Appeal No. 2006-1610
Application No. 09/826,420
(page 11 of principal brief, fourth paragraph). The relevant
issue is what one of ordinary skill in the art would have
thought to be obvious at the time of filing the present
application in light of the teachings of the prior art. In re
Keller, 642 F.2d 413, 426, 208 USPQ 871, 882 (CCPA 1981).
Appellants also submit that the present inventor "realized
that there may be some truth in the once-had belief that
ethylene oxide gas is more active at elevated temperatures"
(page 12 of principal brief, second paragraph). However,
McGowan gives no indication whatsoever that such a belief is
rejected by McGowan but, rather, that a preheating step requires
more time. Manifestly, one of ordinary skill in the art would
have to resort to only routine experimentation to determine the
degree of sterilization required for any particular article.
As for the gas injection pins of claim 2 on appeal, we
totally agree with the examiner that Multivac evidences the
obviousness of substituting gas injection pins for the gas
injection nozzle of McGowan. We agree with the examiner that it
would have been prima facie obvious for one of ordinary skill in
the art to substitute one functional equivalent for another. As
stated by the examiner, one of ordinary skill in the art would
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