Appeal 2007-0343
Application 09/745,702
For the above reasons, Appellants' arguments do not demonstrate the
Examiner erred in rejecting claims 1 and 6-9 as unpatentable over Richards
in view of Hamilton and Meissner. The rejection is sustained as to these
claims.
We, like the Examiner, also conclude that the use of an oval shape,
rather than a circular shape, for a portion of the passageway and the outlet
opening of Richards' pack would have been an obvious variation of
Richards' device. While Appellants' Specification indicates an oval or
elliptical shape can, at least for some sizes, accommodate the human hand
more readily than a circular shape, the Specification also ultimately
concedes that the particular shape selected will depend on design and
aesthetic considerations of the use of the device.
When there is a design need or market pressure to
solve a problem and there are a finite number of
identified, predictable solutions, a person of
ordinary skill has good reason to pursue the known
options within his or her technical grasp. If this
leads to the anticipated success, it is likely the
product not of innovation but of ordinary skill and
common sense. In that instance the fact that a
combination was obvious to try might show that it
was obvious under § 103.
KSR Int’l., 127 S.Ct. at 1742, 82 USPQ2d at 1397. Ovals, ellipses, and
circles are all standard and well-known geometric shapes whose attributes
and implications are far too well established to present issues of
unpredictability. We thus conclude that selection of any one of them
depending on the design, footprint, and aesthetic considerations would have
been well within the technical grasp of one of ordinary skill in the art and the
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