Appeal 2007-1325
Application 10/065,722
1 KSR, 127 S. Ct. at 1741, 82 USPQ2d at 1396. The holding in KSR makes
2 clear that there is no longer, if there ever was, a rigid requirement for finding
3 a reason to combine teachings of the prior art.
4 Helpful insights, however, need not become rigid
5 and mandatory formulas; and when it is so applied,
6 the TSM test is incompatible with our precedents.
7 The obviousness analysis cannot be confined by a
8 formalistic conception of the words teaching,
9 suggestion, and motivation, or by overemphasis on
10 the importance of published articles and the
11 explicit content of issued patents. KSR, 127 S. Ct.
12 at 1741, 82 USPQ2d at 1396.
13 Rather, the application of common sense may control the
14 reasoning to combine prior art teachings. See Id. at 1742, 1397.
15 The practice of attaching a strap to an item to prevent it from being
16 lost is familiar to everyone and has long been used in the simplest
17 applications. It is common sense, for example, to attach these items to a
18 holder to keep them from being lost, (1) a surf board to the surfer’s ankle,
19 (2) reading glasses to the neck of the reader, (3) a chuck key to a drill, (4) a
20 fire hydrant hose opening cover to the hydrant, (5) car gas caps to a car, (6)
21 golf club covers one to another, (7) baby pacifiers to a baby's shirts, (8) kids
22 gloves to a winter coat, (9) keys to a belt, etc. Thus, common sense acquired
23 by everyday experience would dictate that the plug9 or cover to the drink
24 opening disclosed in Freek at column 3, lines 63-65, would somehow be
25 attached to the lid through the intermediary of a strap or lanyard in order to
26 prevent the plug from being lost when the contents are not being consumed.
9 Appellants argue (Br. 10) that the Examiner has mischaracterized the word
“plug” from Freek. But, Freek in column 3, line 63 explicitly states that a
“plug” may cover the drink opening. The term “plug” thus speaks for itself.
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