Appeal 2007-0388
Application 10/337,459
axis of rotation of the wheel. Nonobviousness cannot be established by
attacking the references individually when the rejection is predicated upon a
combination of prior art disclosures. See In re Merck & Co. Inc., 800 F.2d
1091, 1097, 231 USPQ 375, 380 (Fed. Cir. 1986). In this case, as the
Examiner's rejection is predicated on a combination of Stanton and Harvey,
we cannot ignore the clear teachings of Stanton in making determinations of
nonobviousness.
Claims 3, 9, 14, 18, 19, and 20 further recite the distance between the
fuse and the brake heat sink and the distance the fuse extends away from the
radius of the wheel structure. The Examiner contends that these limitations
do not patentably distinguish the claims over the applied prior art.
Specifically, the Examiner's position is that it would have been obvious to
one of ordinary skill in the art to physically locate the fusible element
(packing 42) as close to the heat source as desired, "since it has been held
that where the general conditions of a claim are disclosed in the prior art,
discovering the optimum or workable ranges involves only routine skill in
the art" (Answer 5). Appellants contend that, since neither Stanton nor
Harvey disclose any desire to move the fuse close to the heat sink and
Stanton even teaches keeping the fuse at least partially in the wheel structure
for better heat transfer from the rim to the fuse, the prior art provides no
motivation to optimize this condition by moving the fuse close to the heat
sink and away from the wheel structure (Appeal Br. 6-8).
As noted previously, while there must be some articulated reasoning
with some rational underpinning to support the legal conclusion of
obviousness, such reasoning need not be found in precise teachings in the
references; the USPTO "can take account of the inferences and creative
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