Appeal 2006-1453
Application 10/662,344
determines “‘the scope and content of the prior art,’” ascertains “‘the
differences between the prior art and the claims at issue,’” and resolves “‘the
level of ordinary skill in the pertinent art.’” Id. (citing Dann v. Johnston, 425
U.S. 219, 226, 189 USPQ 257, 261 (1976)) (quoting Graham, 383 U.S. at
17, 148 USPQ at 467). “Against this background, the Board determines
whether the subject matter would have been obvious to a person of ordinary
skill in the art at the time of the asserted invention.” Id. (citing Graham, 383
U.S. at 17, 148 USPQ 467). In making this determination, the Board can
assess evidence related to secondary indicia of non-obviousness like
“commercial success, long felt but unsolved needs, failure of others, etc.”
Id., 383 at 17-18, 148 USPQ at 1335; accord In re Rouffet, 149 F.3d 1350,
1355, 47 USPQ2d 1453, 1455-56 (Fed. Cir. 1998). “We have explained that
to reject claims in an application under section 103, an examiner must show
an unrebutted prima facie case of obviousness. ‘On appeal to the Board, an
applicant can overcome a rejection by showing insufficient evidence of
prima facie obviousness or by rebutting the prima facie case with evidence
of secondary indicia of nonobviousness.’” Id. (citing Rouffet, 149 F.3d at
1355, 47 USPQ2d at 1455).
ANALYSIS
As noted above in our findings of fact, we do not concur with the
Examiner’s finding that Boik or Kraus shows foot portions that are
connected to the column member with a plurality of supporting means as
required by the claims on appeal. As we understand the Examiner, the
Examiner states that the foot portions are connected to the column either
because of their physical contact as shown in Figure 13 of Boik or that they
are connected to the column portion through the agency of the head portion.
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