Appeal No. 2007-0737
Application No. 10/290,606
others. Graham v. John Deere Co., 383 U.S. 1, 17. . . (1966).” DyStar
Textilfarben GmbH & Co. Deutschland KG v. C.H. Patrick Co.,
464 F.3d 1356, 1360, 80 USPQ2d 1641, 1645 (Fed. Cir. 2006).
On the record before us, we find sufficient evidence to establish prima
facie obviousness of the claimed subject matter. After identifying the
difference between the claimed invention and the prior art, the Examiner
clearly articulates a reason that would have motivated the skilled worker to
have modified the prior art (Answer 4). The Examiner also provides
evidence from the scope and contents of the prior art that the modification
was conventional and commensurate with the level of ordinary skill in the
art (id. at 5). Because these findings are at issue, we explain the Examiner’s
case in more detail below.
Ellis is the primary reference relied upon by the Examiner to establish
the differences between the claimed invention and the prior art. Ellis
describes an ice cream “dipper” which utilizes “a pneumatic or hydraulic
method of operation.” (Ellis at p. 1, col. 1, ll. 25-27.) The dipper comprises
a rigid exterior dipper shell (10) and a flexible interior diaphragm (12)
within the rigid shell (Ellis at p. 1, col. 1, ll. 1-5; col. 2, ll. 8-11). The dipper
also “includes an ejector bulb (15) that acts as a pump to compress air
between the exterior rigid shell and the interior flexible diaphragm. When
the user pumps air into the area between [the ] rigid exterior shell and the
flexible interior diaphragm of the scoop, the diaphragm deforms and
displaces the ice cream from the scoop (see page 2, left column, lines 40-
50).” (Br. 3.)
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