Appeal 2007-0994
Application 10/171,358
which a patent might be determined to be obvious. In particular, the Supreme
Court emphasized that “the principles laid down in Graham reaffirmed the
‘functional approach’ of Hotchkiss, 11 How. 248.” KSR, 127 S.Ct. at 1739, 82
USPQ2d at 1395 (citing Graham v. John Deere Co., 383 U.S. 1, 12 (1966)
(emphasis added)), and reaffirmed principles based on its precedent that “[t]he
combination of familiar elements according to known methods is likely to be
obvious when it does no more than yield predictable results.” Id. The Court
explained:
When a work is available in one field of endeavor, design
incentives and other market forces can prompt variations
of it, either in the same field or a different one. If a
person of ordinary skill can implement a predictable
variation, §103 likely bars its patentability. For the same
reason, if a technique has been used to improve one
device, and a person of ordinary skill in the art would
recognize that it would improve similar devices in the
same way, using the technique is obvious unless its
actual application is beyond his or her skill.
Id. at 1740, 82 USPQ2d at 1396. The operative question in this “functional
approach” is thus “whether the improvement is more than the predictable use of
prior art elements according to their established functions.” Id.
ANALYSIS
Appellant chooses to argue only the independent claims 1 and 36.
Therefore, we hold that claims 4 and 5 will stand or fall with claim 1 and claims
37, 38, 40, 47 and 48 stand or fall with claim 36.
We will affirm the § 103 rejection of claims 1, 4 and 5 for two reasons.
We agree with the Examiner that Judkins discloses lift cords of from 2 to 8
4
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