Appeal 2006-3387
Application 09/385,489
In determining the level of ordinary skill in the art, we consider various
factors to shed light on what a hypothetical person of ordinary skill would have
known at the time of the invention.
The person of ordinary skill in the art is a hypothetical
person who is presumed to know the relevant prior art.
Custom Accessories, Inc. v. Jeffrey-Allan Indus., Inc.,
807 F.2d 955, 962, 1 USPQ2d 1196, 1201 (Fed. Cir.
1986). In determining this skill level, the [Board] may
consider various factors including “type of problems
encountered in the art; prior art solutions to those
problems; rapidity with which innovations are made;
sophistication of the technology; and educational level of
active workers in the field.” Id. In a given case, every
factor may not be present, and one or more factors may
predominate. Id. at 962-63, 1 USPQ2d at 1201.
In re GPAC, 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995).
In our determination of obviousness under 35 U.S.C. § 103, we also
carefully weigh, in addition to the evidence relied upon by the Examiner, the
objective evidence of nonobviousness provided by Appellants.
Establishing long-felt need requires objective evidence that an art recognized
problem existed in the art for a long period of time without solution. The
relevance of long-felt need and the failure of others to the issue of obviousness
depends on several factors. First, the need must have been a persistent one that
was recognized by those of ordinary skill in the art. Orthopedic Equipment Co. v.
All Orthopedic Appliances, Inc., 707 F.2d 1376, 217 USPQ 1281 (Fed. Cir. 1983);
see also In re Gershon, 372 F.2d 535, 539, 152 USPQ 602-65 (CCPA 1967).
Second, the long-felt need must not have been satisfied by another before the
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