Appeal 2007-0128
Reexamination Control 90/006,208
Patent 5,573,648
between the reference and sensing electrode and compares it to a preset value to
measure the concentration of the gas being sensed. (Dempsey, col. 9, Fig. 3, ll. 21-
36).
B. The Rejection of Claims 1, 3-6, 8, 9, 13-16, 75, 79 and 80 under 35
U.S.C. 103(a) as being unpatentable over Dempsey in view of Grot,
Uchida and/or Vanderborgh.
The ultimate determination whether an invention would have been obvious
under 35 U.S.C. §103 is a legal conclusion based on underlying findings of fact.
KSR Int’l v. Teleflex Inc., No. 04-1350, p. 23 (Apr. 30, 2007). Specifically,
obviousness is a question of law based upon underlying findings of fact with the
factual inquiry including: (1) the scope and content of the prior art; (2) the level of
ordinary skill in the prior art; (3) the difference between the claimed invention and
the prior art; and (4) objective evidence of nonobviousness. Graham v. John
Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 460 (1966).
In addressing the findings of fact, “[t]he combination of familiar elements
according to known methods is likely to be obvious when it does nothing more
than yield predictable results.” KSR at 12. In particular, where the general
conditions of the claims are disclosed in the prior art, it is not inventive to discover
the optimum or workable ranges by routine experimentation. In re Aller, 220 F.2d
454, 456, 105 USPQ 233, 235 (CCPA 1955). As explained in KSR, “[a] person of
ordinary skill is also a person of ordinary creativity, not an automaton.” KSR at 17.
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