Appeal 2007-1269
Application 10/636,468
familiar items may have obvious uses beyond their primary purposes, and in
many cases a person of ordinary skill will be able to fit the teachings of
multiple patents together like pieces of a puzzle." KSR, 127 S. Ct. at 1742,
82 USPQ2d at 1397. "A person of ordinary skill is also a person of ordinary
creativity, not an automaton." Id.
Furthermore, the Supreme Court explained that "[w]hen there is a
design need or market pressure to solve a problem and there are a finite
number of identified, predictable solutions, a person of ordinary skill has
good reason to pursue the known options within his or her technical grasp."
KSR, 127 S. Ct. at 1742, 82 USPQ2d at 1397. "If this leads to the
anticipated success, it is likely the product not of innovation but of ordinary
skill and common sense," id. and, in such an instance "the fact that a
combination was obvious to try might show that it was obvious under § 103"
id.
The Court cautioned that "[a] factfinder should be aware, of course, of
the distortion caused by hindsight bias and must be cautious of arguments
reliant upon ex post reasoning." KSR, 127 S. Ct. at 1742, 82 USPQ2d at
1397.
The level of ordinary skill in the art may be evidenced by the prior art
references. In re GPAC Inc., 57 F.3d 1573, 1579, 35 USPQ2d 1116, 1121
(Fed. Cir. 1995) ("Although the Board did not make a specific finding on
skill level, it did conclude that the level of ordinary skill in the art . . . was
best determined by appeal to the references of record . . . . We do not
believe that the Board clearly erred in adopting this approach."); see also In
re Oelrich, 579 F.2d 86, 91, 198 USPQ 210, 214 (CCPA 1978) ("the PTO
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