Appeal 2007-0274
Application 10/011,629
expressly disclosed as being for the purpose of aiming in low-light
conditions (col. 1, ll. 23-26). Under these circumstances, we determine it is
appropriate to regard the Barone reference as reasonably pertinent to the
particular problem with which the Appellants are involved, namely, the
problem of aiming in low-light conditions under which the sighting marker
cannot be differentiated from the object being observed (Specification 1:24-
26).
Our determination is not improper simply because Appellants'
sighting marker is a scope reticle and Barone's sighting markers are front
and rear pistol sights. While this distinction removes Barone from
Appellants' field of endeavor, it does not militate against the pertinence of
Barone to the problem of aiming in low-light conditions. As the Supreme
Court has recently explained, "[w]hen a work is available in one field of
endeavor, design incentives and other market forces can prompt variations of
it, either in the same field or a different one" (emphasis added). KSR Int'l
Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1740, 82 USPQ2d 1385, 1396 (Fed.
Cir. 2007). Though in a different field, Barone uses photoluminescent
material on a sighting marker to solve the problem of aiming in low-light
conditions, and an artisan would have been motivated to use this
photoluminescent material on a reticle sighting marker in order to solve the
same problem.
For the above stated reasons, we find that Barone is analogous prior
art and accordingly that Appellants have not shown failure by the Examiner
to establish a prima facie case of obviousness.
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