Appeal 2006-3332
Application 10/161,519
vessel 1, the lid 8 is replaced, and the detection means is left in the ground
until the next inspection (Homma Translation 7). If termites or signs of
termite activity are found, routes of termite infiltration are surmised based
on the location of detected termite activity and “[f]urther appropriate
measures” are taken to control the termites (Homma Translation 8-9). One
of ordinary skill in the art at the time of Appellant’s invention would have
inferred that such “[f]urther appropriate measures” could, and probably
would, include use of termiticide.
Moreover, Appellant admits that it was known in the art to place
toxicant-free monitoring devices, in the form of “stakes or blocks of termite
susceptible timber to lure termites” near a known termite problem to monitor
for termite activity. Once termite activity is observed, termiticide, such as
arsenic trioxide, is injected. (Specification 2:19-26.) Hence, Appellant
admits that it was known in the art to monitor for termite activity first with a
toxicant-free monitoring device and then, only after termite activity is
detected, apply termiticide in the areas where termite activity is detected.
“The combination of familiar elements according to known methods
is likely to be obvious when it does no more than yield predictable results.”
KSR Int’l. Co. v. Teleflex Inc., 127 S.Ct. 1727, 1731, 82 USPQ2d 1385,
1395 (2007).
When there is a design need or market pressure to
solve a problem and there are a finite number of
identified, predictable solutions, a person of
ordinary skill has good reason to pursue the known
options within his or her technical grasp. If this
leads to the anticipated success, it is likely the
product not of innovation but of ordinary skill and
common sense. In that instance the fact that a
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