Appeal 2007-0724
Reexamination Control 90/006,775
Patent 6,428,526
1 Obviousness is a legal determination made on the basis of underlying
2 factual inquiries including (1) the scope and content of the prior art; (2) the
3 differences between the claimed invention and the prior art; (3) the level of
4 ordinary skill in the art; and (4) any objective evidence of unobviousness.
5 Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966).
6 The level of ordinary skill in the art is evidenced by the applied references.
7 See In re Oelrich, 579 F.2d 86, 91, 198 USPQ 210, 214 (CCPA 1978); In re
8 GPAC Inc., 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121 (Fed. Cir. 1995).
9 A person of ordinary skill is also a person of ordinary creativity, not an
10 automaton. KSR Int’l v. Teleflex Inc., 127 S.Ct. 1727, 1742, 82 USPQ2d
11 1385, 1397 (2007).
12 A motivation to combine teachings need not be expressly stated in any
13 prior art reference. In re Kahn, 441 F.3d 977, 987, 78 USPQ2d 1329, 1336
14 (Fed. Cir. 2006). That being said, there must be some articulated reasoning
15 with rational underpinnings to support combining the teachings. Kahn, 441
16 F.3d at 988, 78 USPQ2d at 1336.
17 ANALYSIS
18 A. Claim interpretation
19 The following language of claim 1 is at issue:
20 said stemlike projections being releasably engaged with said
21 disposable absorbent article to protect said hook material and
22 provide a pant-like structure before said disposable absorbent
23 article is packaged.
24
25 The examiner interprets this language as setting forth a process step in
26 an article claim. Specifically, the examiner explains (Answer 4):
8
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