Appeal 2006-2547
Application 10/095,409
Patent 6,237,775
1 are nonanalogous art (id., 8-9). In particular, Appellants argue that the food
2 containers of Brandenburg, although holding food, are "not in the field of
3 food pans utilized with food preparation tables" (id., 8). Appellants further
4 argue that Branz's food pans themselves block air flow to the food, which is
5 the specific problem being faced by Appellants (id., 9). As to Rostkowski,
6 Appellants contend that while it may have been obvious to vent harmful
7 gases in a firewood holder, that was not the problem being faced by
8 Appellants (id.).
9 Appellants additionally argue that the transitional phrase "consisting
10 essentially of" in claim 24 and its dependent claims precludes application of
11 Brandenburg, Branz and Rostkowski as prior art because they would
12 materially change the characteristics of Appellants' food pan (Reply Br., 10).
13 Specifically, Brandenburg's food container requires a handle and a cover;
14 Branz's plenum requires ledges to support condiment pans and is
15 incorporated into a food preparation table; and, Rostkowski's storage
16 container requires a cover and handles (Reply Br., 10-11).
17 "[I]f a technique has been used to improve one device, and a person of
18 ordinary skill in the art would recognize that it would improve similar
19 devices in the same way, using the technique is obvious unless its actual
20 application is beyond his or her skill." KSR Int'l v Teleflex, Inc., 127 S.Ct.
21 1727, 1740, 82 USPQ2d 1385, 1396 (2007). "The test for obviousness is not
22 whether the features of a secondary reference may be bodily incorporated
23 into the structure of the primary reference; nor is it that the claimed
24 invention must be expressly suggested in any one or all of the references.
25 Rather, the test is what the combined teachings of the references would have
9
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