Appeal No. 2006-2919 Page 12
Application No. 10/291,955
of fact.” In re Fulton, 391 F.3d 1195, 1199-1200, 73 USPQ2d 1141, 1144
(Fed. Cir. 2004) (internal citations omitted).
With respect to the allegation by appellants that Gerety and Roustaei
are not analogous references, we note that the Court of Appeals for the
Federal Circuit has set forth two criteria for determining whether prior art is
analogous: (1) whether the art is from the same field of endeavor,
regardless of the problem addressed, and (2) if the reference is not within
the field of the inventor's endeavor, whether the reference still is reasonably
pertinent to the particular problem with which the inventor is involved. In re
Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336 (Fed. Cir. 2006), citing
In re Oetiker, 977 F.2d 1443, 1447, 24 USPQ2d 1443, 1445-6 (Fed. Cir.
1992).
In the instant case, we acknowledge that Gerety and Roustaei are not
directed to the same field of endeavor. However, we note that modern
imaging devices are ubiquitous to many fields such as medicine,
telecommunications, photography, publishing, security, and biometric
authentication. Because many biometric authentication devices rely upon
some type of imaging device (e.g., iris and fingerprint scanners), we find the
Roustaei reference is reasonably pertinent to the particular problem with
which the inventor is involved. Therefore, we find that Gerety and Roustaei
are combinable by virtue of being analogous references.
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