Appeal 2007-0269
Application 10/799,095
1 82 USPQ2d at 1395, and discussed circumstances in which a patent might be
2 determined to be obvious.
3 In particular, the Supreme Court emphasized that “the principles laid down
4 in Graham reaffirmed the ‘functional approach’ of Hotchkiss, 11 How. 248.” KSR,
5 127 S.Ct. at 1739, 82 USPQ2d at 1395 (citing Graham, 383 U.S. at 12, 148 USPQ
6 at 464 (emphasis added)), and reaffirmed principles based on its precedent that
7 “[t]he combination of familiar elements according to known methods is likely to be
8 obvious when it does no more than yield predictable results.” Id. The Court
9 explained:
10 When a work is available in one field of endeavor, design
11 incentives and other market forces can prompt variations
12 of it, either in the same field or a different one. If a
13 person of ordinary skill can implement a predictable
14 variation, § 103 likely bars its patentability. For the same
15 reason, if a technique has been used to improve one
16 device, and a person of ordinary skill in the art would
17 recognize that it would improve similar devices in the
18 same way, using the technique is obvious unless its
19 actual application is beyond his or her skill.
20
21 Id. at 1740, 82 USPQ2d at 1396. The operative question in this “functional
22 approach” is thus “whether the improvement is more than the predictable use of
23 prior art elements according to their established functions.”
24
25
26 ANALYSIS
27
28 Appellants argue that it would not have been obvious to fabricate the strips
29 of Brockenbrough of extruded plastic. Appellants make this point on page 8 of the
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