Appeal 2007-1584
Application 10/689,337
and Weisgerber. Here, the combination involved “the mere application of a
known technique” (Weisgerber’s teaching of strengthening a support with a
web) “to a piece of prior art ready for the improvement” (DeArmond’s weed
extractor with a support lacking a web to strengthen the tool. KSR Int’l, 127
S. Ct. at 1740. Significantly, according to the Court:
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. Sakraida and Anderson’s-Black Rock are illustrative-a
court must ask whether the improvement is more than the
predictable use of prior art elements according to their
established functions.
Id. In this case, the skilled artisan would have recognized the value of
adding a web or brace to DeArmond’s weed pulling device. And adding
such a web or brace would have improved DeArmond’s device in the same
way it improved Weisgerber’s. Such a simple addition would not have been
beyond the level of skill in the art and thus would have been obvious, as the
Examiner correctly determined. Appellant “should not be granted a patent
for merely adding a reinforcing strut to an existing tool such as the
DeArmond tool” (Answer 8). Thus, we affirm the Examiner’s rejection of
claims 1, 4, 5, 7, 11-14, and 16 under 35 U.S.C. § 103(a).
Claims 6 and 15
In addition to DeArmond and Weisgerber, the Examiner relies upon
Gottlieb, U.S. Patent 4,472,986 (Sep. 25, 1984) to support his § 103(a)
4
Page: Previous 1 2 3 4 5 6 Next
Last modified: September 9, 2013