Appeal 2007-1570
Application 10/646,720
Regarding Appellant’s first argument that Carraras and Zumbach are
non analogous art to the claimed invention, we note that in KSR Int’l Co. v.
Teleflex Inc., the Supreme Court recently stated:
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
[emphasis added].
KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 1740, 82 USPQ2d
1385, 1396 (2007).
Here, we agree with the Examiner that the expanded coverage area of
the variant elongated or rectangular nozzles of Carraras and Zumbach would
have been recognized by a person of ordinary skill in the art as an
improvement over the conventional nozzle orifices taught by Barada, given
the limited surface area covered by Barada’s conventional nozzle orifice.1
With respect to the issue of hindsight, in KSR the U.S. Supreme Court
reaffirmed that “[a] factfinder should be aware, of course, of the distortion
caused by hindsight bias and must be cautious of arguments reliant upon ex
1 Carraras teaches that jets 6 and 7 each have rectangular (i.e., elongated)
sections (col. 4, ll. 57-58). Zumbach teaches an elongated nozzle (col. 8, ll.
49-51, i.e., sensing slit 34 extending longitudinally in air gap 31.
5
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