Appeal 2007-1478
Application 10/359,861
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. . . . [A] court must ask whether the improvement is
more than the predictable use of prior art elements according to
their established functions.”
Id. at 1740, 82 USPQ2d at 1396. “One of the ways in which a patent’s
subject matter can be proved obvious is by noting that there existed at the
time of the invention a known problem for which there was an obvious
solution encompassed by the patent’s claims.” Id. at 1742, 82 USPQ2d
at 1397.
ANALYSIS
The first issue is whether the claims are limited to a reflective
license plate. Claim 2 does not contain any limitations directed to the
license plate being a reflective license plate. Nor do we consider the
recitation of a license plate in claim 2 to be inherently limited to such a plate.
Thus, we consider the claim 2 to be broad and encompass any type of license
plate. However, we note that Rice states that his illuminated display device
can be used “in lieu of a license plate.” Fact 1. Although Rice states that the
display may contain letters and numbers (Fact 3), it is not entirely clear if
such a display corresponds to a license plate of the vehicle. Since (1) we are
not certain if the letters and numbers correspond to a license pate of the
vehicle and (2) we have what we consider to be more credible evidence of
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