Ex Parte Moore - Page 9

                Appeal 2007-0610                                                                               
                Application 09/766,357                                                                         

                give rise to reversible error ‘where the prior art itself reflects an appropriate              
                level and a need for testimony is not shown.’”).                                               
                Objective Evidence of Nonobviousness                                                           
                13. Appellant presented no evidence of secondary considerations of non-                        
                obviousness for our consideration.                                                             

                      C. Principles of Law                                                                     
                      “Section 103 forbids issuance of a patent when ‘the differences                          
                between the subject matter sought to be patented and the prior art are such                    
                that the subject matter as a whole would have been obvious at the time the                     
                invention was made to a person having ordinary skill in the art to which said                  
                subject matter pertains.’”  KSR Int'l Co. v. Teleflex Inc., 127 S.Ct. 1727,                    
                1734, 82 USPQ2d 1385, 1391 (2007).  The question of obviousness is                             
                resolved on the basis of underlying factual determinations including (1) the                   
                scope and content of the prior art, (2) any differences between the claimed                    
                subject matter and the prior art, and (3) the level of skill in the art.  Graham               
                v. John Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966).  See also                      
                KSR, 127 S.Ct. at 1734, 82 USPQ2d at 1391 (“While the sequence of these                        
                questions might be reordered in any particular case, the [Graham] factors                      
                continue to define the inquiry that controls.”)  The Court in Graham further                   
                noted that evidence of secondary considerations “might be utilized to give                     
                light to the circumstances surrounding the origin of the subject matter sought                 
                to be patented.”  383 U.S. at 18, 148 USPQ at 467.                                             
                      In KSR, the Supreme Court emphasized “the need for caution in                            
                granting a patent based on the combination of elements found in the prior                      


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