Appeal 2007-0550
Application 10.763,714
creative steps that a person of ordinary skill in the art would employ.” KSR
Int’l. Co. v. Teleflex Inc., 127 S.Ct. 1727, 1741, 82 USPQ2d 1385, 1396
(2007).
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,
and a person of ordinary skill in the art would
recognize that it would improve similar devices in
the same way, using the technique is obvious
unless its actual application is beyond his or her
skill.
Id., at 1740, 82 USPQ2d at 1396. We must ask whether the improvement is
more than the predictable use of prior art elements according to their
established functions. Id. Further,
[w]hen 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.
There are a finite number of conventional brake fluids known for use
in disk brake systems. As evidenced by Anderson, hydraulic fluid is one of
those identified conventional brake fluids and, as such, its selection appears
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