Appeal 2007-0370
Application 09/951,560
1 When a work is available in one field of endeavor, design
2 incentives and other market forces can prompt variations of it,
3 either in the same field or a different one. If a person of
4 ordinary skill can implement a predictable variation, §103
5 likely bars its patentability. For the same reason, if a technique
6 has been used to improve one device, and a person of ordinary
7 skill in the art would recognize that it would improve similar
8 devices in the same way, using the technique is obvious unless
9 its actual application is beyond his or her skill.
10
11 Id. at 1740, 82 USPQ2d at 1396. The operative question in this “functional
12 approach” is thus “whether the improvement is more than the predictable use
13 of prior art elements according to their established functions.” Id.
14 The Supreme Court stated that there are “[t]hree cases decided after Graham
15 [that] illustrate this doctrine.” Id. at 1739, 82 USPQ2d at 1395. “In United
16 States v. Adams, … [t]he Court recognized that when a patent claims a
17 structure already known in the prior art that is altered by the mere
18 substitution of one element for another known in the field, the combination
19 must do more than yield a predictable result.” Id. at 1739-40, 82 USPQ2d at
20 1395. “Sakraida and Anderson’s-Black Rock are illustrative – a court must
21 ask whether the improvement is more than the predictable use of prior art
22 elements according to their established functions.” Id. at 1740, 82 USPQ2d
23 at 1396.
24 It appears to me that this is such a case.
25 One of ordinary skill in the art at the time the invention was made
26 would have known that GPS systems could be used to track speeds in cars,
27 report those speeds to another wirelessly, and result in that other party
28 imposing a fine for excessive speeds for predetermined period of time (see,
29 e.g. American Car Rental, Inc. v. Commissioner of Consumer Protection,
23
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