Appeal Number: 2006-2761
Application Number: 10/806,223
The examiner has rejected the claims under 35 U.S.C. § 103. We initially note that the
examiner bears the initial burden of presenting a prima facie case of obviousness See In re
Rijckaert, 9 F.3d 1531, 1532, 28 USPQ2d 1955, 1956 (Fed. Cir. 1993), which is established
when the teachings of the prior art itself would appear to have suggested the claimed subject
matter to one of ordinary skill in the art See In re Bell, 991 F.2d 781, 783, 26 USPQ2d 1529,
1531 (Fed. Cir. 1993). The examiner is of the opinion that Cheshire discloses the invention as
claimed except that Cheshire does not show a carbon dioxide attractant. The examiner relies on
Waters for disclosing a carbon dioxide insect attractant and concludes:
. . . it would have been obvious to provide Cheshire with a carbon
dioxide attractant as shown by Waters to attract more insects to the
trap. . . it would have been obvious to supply carbon dioxide to a
point above the fan to more effectively disperse the carbon dioxide
to the area surrounding the trap to attract more insects. . . it would
have been obvious to employ a tank to hold the carbon dioxide as
opposed to generating the carbon dioxide in a reaction chamber
since the function is the same and no stated problem is solved. The
examiner takes Official Notice that carbon dioxide tanks are well
known in the art relating to the trapping of flying insects. [final
rejection at pages 3 to 4].
We will not sustain this rejection because we agree with the appellants that there is no
motivation to combine the teachings of the Cheshire and Waters in the manner explained by the
examiner. We also agree with the appellants that even if the teachings of Cheshire and Waters
were properly combinable, such combination of teachings would not have suggested to a person
of ordinary skill in the art at the time of the invention each of the elements of the claimed
invention.
In regard to the combinability of the Cheshire and Waters reference, we note that
Cheshire discloses a light as an attractant and there is no disclosure in Cheshire that the light is
dispersed in the outflow of the fan. Claim 1 recites that the outflow has an insect attractant
dispersed therein. Waters teaches that the device therein disclosed is mounted under an insect
trap, attached to an insect trap or placed at the cite of any insect trap so that the carbon dioxide is
directed into the trap (col. 1, lines 45 to 46, 58 to 60; col. 2, lines 47 to 49). As such, we do not
agree with the examiner that there is motivation for combining the teachings of Cheshire and
Waters so that carbon dioxide is dispersed in the outflow of a Cheshire type device. In our view,
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