Appeal 2006-3332
Application 10/161,519
where termites are active. After all, “[a] person of ordinary skill is also a
person of ordinary creativity, not an automaton.” Id., 127 S.Ct. at 1742, 82
USPQ2d at 1397.
In light of the above, we conclude that it would have been obvious to
modify Takenaka by providing in the container 1 a toxicant-free monitoring
device, in place of the mixture of pulp, sawdust, sugars and insecticide, to
monitor for termite activity and then, after termite activity is detected in such
monitoring step, providing in the container a toxicant-containing matrix. As
a person of ordinary skill in the art would readily appreciate, there are a
finite number of ways in which the toxicant-containing matrix may be
placed in the container 1, specifically, either as a separate matrix alongside
the toxicant-free matrix within the container 1 or as a mixture of bait
(monitoring matrix) and toxicant, with the toxicant-free monitoring device
having been removed from the container 1. Accordingly, either arrangement
would have been obvious to one of ordinary skill in the art. The subject
matter of claims 1, 2, 4, 7, 9, 12, 13, 15, 20, 21, and 22 is therefore
unpatentable over Takenaka in view of Homma, and Appellant’s admissions.
With respect to claims 5, 6, 16, and 17, a person of ordinary skill in
the art would further have appreciated that the toxicant-containing matrix
could take the form of either a dimensionally stable structure or a
dimensionally unstable structure, such as a liquid or a mixture of particulate
and liquid, the latter requiring placement in some form of casing, either one
of which forms would have been obvious for use in Takenaka’s device.
Accordingly, it would have been obvious to enclose the toxicant-containing
matrix within a casing placed within Takenaka’s container 1. The subject
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