Appeal No. 2006-2084
Reexamination Control No. 90/006,360
may order and conduct reexamination based on prior art that was cited but whose
relevance to patentability was not discussed in any prior related PTO
proceedings"). In any case, since any reexamination filed today permits
consideration of all references previously cited or considered, a Portola Packaging
argument merely delays the inevitable.
Obviousness
Scope and content of the prior art
Scope
The "scope" of the prior art relates to whether references are from
"analogous art" that may be relied on in patentability determinations. See
In re Deminski, 796 F.2d 436, 442, 230 USPQ 313, 315 (Fed. Cir. 1986) (the
reference must either be in the field of the applicant's endeavor or, if not, then be
reasonably pertinent to the particular problem with which the inventor was
concerned); Stratoflex, Inc. v. Aeroquip Corp., 713 F.2d 1530, 1535,
218 USPQ 871, 876 (Fed. Cir. 1983) ("The scope of the prior art has been defined
as that 'reasonably pertinent to the particular problem with which the inventor was
involved'.").
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