Appeal 2007-0756
Application 10/652,853
on by the Examiner in an obviousness rationale without designating it as a
new ground of rejection. In re Bush, 296 F.2d 491, 496, 131 USPQ 263,
266-67 (CCPA 1966). The rejection of claim 2 is sustained.
We turn our attention finally to the rejection of claims 7 and 8,
depending from claim 1 and further reciting dampers in a fluid path with the
pumps and structural details of the recited dampers, as unpatentable over
Nohira in view of Fujita. Nohira illustrates dampers DP1 and DP2 in fluid
communication with pumps HP1 and HP2 (Nohira, Fig. 7), with inlets and
outlets aligned coaxially so as to open orthogonally to axes of normally open
solenoid valves PC1 through PC8. As acknowledged by the Examiner,
however, Nohira is silent with respect to the structural details of the dampers
as recited in claims 7 and 8 (Answer 7). The Examiner finds that these
structural details of dampers were known in the art at the time of Appellants’
invention, as evidenced by the damper 32a depicted in Fig. 1 of Fujita
(Fujita, col. 3, ll. 42-45). The Examiner contends that it would have been
obvious to one of ordinary skill in the art at the time of Appellants’
invention to employ an old and well known damper structure as taught by
Fujita in a braking apparatus of Nohira since such dampers are widely
available and would be cost advantageous to use (Answer 7). Appellants
argue that the motivation for such a combination is not found in Nohira and
Fujita (Appeal Br. 30).
While there must be some articulated reasoning with some rational
underpinning to support the legal conclusion of obviousness, the analysis
need not seek out precise teachings directed to the specific subject matter of
the challenged claim, for a court or the USPTO can take account of the
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