Appeal 2007-1325
Application 10/065,722
1 Finally, Graham7 addressed a strikingly similar non-analogous art
2 issue as between two liquid containers each with a different closure device
3 and held the containers to be pertinent to one another. The Court reasoned
4 that the devices were pertinent to each other because both seek to solve the
5 same “mechanical closure problem.” 8 Waterbury, Mueller, Aichert, Lane
6 and De Mars all deal with a mechanical closure in a liquid containers as does
7 Dart, and thus must deal with the same mechanical closure problems.
8
9 4. The Motivation Argument
10 Appellants assert the “Examiner has failed to identify any motivation,
11 suggestion, or teaching of the desirability of combining Freek '837 with
12 Waterbury '797 to arrive at Applicants' invention.” (Br. 9) To the extent
13 that Dart argues that an explicit motivation, suggestion, or teaching in the
14 art, the argument has been foreclosed by KSR Int’l Co. v. Teleflex Inc., 127
15 S. Ct. 1727, 82 USPQ2d 1385 (2007). In KSR, the Court characterized the
16 teaching, suggestion, motivation test as a “helpful insight” but found that
17 when it is rigidly applied, it is incompatible with the Court’s precedents.
7 Graham involved two patents: (1) the familiar Graham plow patent and
(2) a Scroggins dispenser patent. The Scroggins patent is addressed in the
Calmar, Inc. v. Cook Chemical Co., and No. 43, Colgate-Palmolive Co. v.
Cook Chemical Co. part of the Graham opinion and relates to U.S. Patent
2,870,943 directed to a plastic finger sprayer with a ‘hold-down’ lid used as
a built-in dispenser for containers or bottles packaging liquid products,
principally household insecticides.
8 As between closure devices for liquid containers, the Court held that these
devices are pertinent because, “closure devices in such closely related art as
pouring spouts for liquid containers are at the very least pertinent
references.” Graham, 383 U.S. at 36, 86 S. Ct 684 at 703.
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