Appeal 2007-0870
Reissue Application 09/902,904
Patent 6,038,784
Based on the foregoing, we do not find claims 19 and 20 to be
anticipated by Son. However, in view of the recent Supreme Court decision
KSR Int'l v Teleflex, Inc., 127 S.Ct. 1727, 82 USPQ2d 1385 (2007), the
Examiner may wish to develop the record as to whether the subject matter of
claims 19 and 20 would have been obvious to a skilled artisan over Son.
D. Obviousness
A claimed invention is not patentable if the subject matter of the
claimed invention would have been obvious to a person having ordinary skill
in the art. 35 U.S.C. § 103(a); KSR Int'l Co. v. Teleflex Inc.,
127 S. Ct. 1727, 82 USPQ2d 1385 (2007); Graham v. John Deere Co. of
Kansas City, 383 U.S. 1 (1966).
Facts relevant to a determination of obviousness include (1) the scope
and content of the prior art, (2) any differences between the claimed
invention and the prior art, (3) the level of skill in the art and (4) any
relevant objective evidence of obviousness or non-obviousness. KSR,
127 S. Ct. at 1731, 82 USPQ2d at 1389; Graham, 383 U.S. at 17-18.
A person having ordinary skill in the art uses known elements and
process steps for their intended purpose. Anderson's-Black Rock, Inc. v.
Pavement Salvage Co., 396 U.S. 57 (1969) (radiant-heat burner used for its
intended purpose in combination with a spreader and a tamper and screed);
Sakraida v. AG Pro, Inc., 425 U.S. 273, 282 (1976) (the involved patent
simply arranges old elements with each performing the same function it had
been known to perform); Dunbar v. Myers, 4 Otto (94 U.S.) 187, 195 (1876)
(ordinary mechanics know how to use bolts, rivets and screws and it is
obvious that any one knowing how to use such devices would know how to
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