Appeal 2006-3332
Application 10/161,519
combination was obvious to try might show that it
was obvious under § 103.
Id., 127 S.Ct. at 1742, 82 USPQ2d at 1397.
As our above findings with respect to Homma and Appellant’s
admission (Specification 2:19-26) evidence, a two-step termite detection and
control process, including a monitoring step using a toxicant-free bait or
monitoring device and a control step using a toxicant or termiticide, was
well known in the art at the time of Appellant’s invention. While Takenaka
discloses a method wherein the two steps are combined, using a matrix or
mixture of both the bait and the insecticide, modification of Takenaka’s
termite control device for use in the known two-step process, wherein the
detection step is first carried out using only a toxicant-free monitoring
device followed by a control step using termiticide only when termite
activity is detected in the first step, involves only the combination of two
known elements, a known device for monitoring and controlling termites,
and a known two-step method for first monitoring for and then controlling
termites. Further, such modification requires merely providing a toxicant-
free monitoring device until termite activity is detected and then providing a
toxicant, either in combination with or separate from the toxicant-free
monitoring device, only when termite activity has been detected and thus
would have been well within the technical grasp of a person of ordinary skill
in the art and, in light of the well known two-step method, would yield
predictable results. Additionally, a person of ordinary skill in the art would
have appreciated, from the well-known two-step method, that the use of
toxicant is not required in the monitoring step and can be postponed until
actual termite activity is detected and then specifically targeted to locations
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