Appeal 2007-0343
Application 09/745,702
provide pressure sensitive adhesive, as taught by Hamilton, on the outer
surface of pleated length of flexible tubing 2, which ultimately becomes the
inner surface of the package after being pulled upward then pushed
downward inside the core 1, in order to form a more secure and perhaps
leakproof package. We do not agree with Appellants that Richards teaches
away from such modification. "A reference may be said to teach away when
a person of ordinary skill, upon [examining] the reference, would be
discouraged from following the path set out in the reference, or would be led
in a direction divergent from the path that was taken by the applicant." In re
Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131 (Fed. Cir. 1994). Simply
that there are differences between two references is insufficient to establish
that such references "teach away" from any combination thereof. See In re
Beattie, 974 F.2d 1309, 1312-13, 24 USPQ2d 1040, 1042 (Fed. Cir. 1992).
While Richards teaches that, when the tubing 2 is made of high density
polyethylene, the twisted joints remain remarkably tight and that, even if the
twisted seals between packages become loosened, the lid and topmost
twisted seal will prevent the escape of odors, that would in no way
discourage one of ordinary skill in the art from trying to further improve the
device and safeguard against release of odors by providing a more secure or
perhaps leakproof closure than by simply twisting, as suggested by
Meissner.
When 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. If a person of ordinary skill can
implement a predictable variation, § 103 likely
bars its patentability. For the same reason, if a
technique has been used to improve one device,
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