Appeal 2006-1804
Application 09/825,609
Where obviousness is based on a combination of prior art references,
the fact finder must determine what the prior art teaches, whether it teaches
away from the claimed invention, and whether it motivates a combination of
the teachings of the references to arrive at the claimed invention. DyStar
Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co., 464 F.3d
1356, 1363, 80 USPQ2d 1641, 1647 (Fed. Cir. 2006).
A reference teaches away when a person of ordinary skill, upon
examining the reference, would be discouraged from following or would be
led in a direction divergent from the path that was taken by the applicant. In
re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994)
ANALYSIS
We begin by first putting to rest the Examiner’s untenable position
that the delay layer and garment-facing outer surface recited in Appellants’
claim 1 are met by the area of Fujioka’s backing layer 31 having openings
31a and the area of backing layer 31 surrounding the area with openings,
respectively. The skilled artisan, having read Appellants’ disclosure, would
read the “garment-facing outer surface” recited in Appellants’ claim 1 on
Fujioka’s entire backing layer 31, not just the border portion thereof. The
skilled artisan thus would consider the area of backing layer 31 having
openings 31a to be part of the “garment-facing outer surface” and not a
delay layer
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