Appeal No. 2006-2963
Application No. 10/309,969
Cir. 2006). “A reference may be said to teach away when a person of ordinary skill,
upon reading the reference, would be discouraged from following the path set out in the
reference, or would be led in a direction divergent from the path that was taken by the
applicant.” In re Kahn, 441 F.3d at 990, 78 USPQ2d at 1338 (Fed. Cir. 2006) (quoting
In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994)).
After carefully reviewing the respective teachings of Peters and de Boor, we find
that the skilled artisan would have been reasonably motivated to apply the teachings of
de Boor to Peters’ technique essentially for the reasons stated by the Examiner in the
rejection. Although Peters improves upon the earlier de Boor technique as Appellants
indicate, this fact hardly forecloses combining the references if they are otherwise
properly combinable. In short, de Boor is prior art for all that it teaches, and on the
record before us, we find that the references are reasonably combinable in the manner
suggested by the Examiner.
In the rejection, the Examiner relied upon de Boor merely to show that it was well
known in the art to define various points based on a convex combination of multiple
points, and define the control point as the intersection of tangents through P and P+
[Answer, pages 7-13].
Significantly, Appellants do not dispute this position, nor dispute that such a
modification to Peters would result in the advantages noted in the rejection. Rather,
Appellants argue that the references are not properly combinable [Brief, page 7; Reply
brief, pages 6 and 7]. Based on the totality of the record before us, however, we find
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