Appeal 2007-1755
Application 10/930,047
443 F.2d 1392, 1395, 170 USPQ 209, 212 (CCPA 1971). See also KSR, 127 S.Ct.
at 1742-43, 82 USPQ2d at 1397 (“Rigid preventative rules that deny factfinders
recourse to common sense, however, are neither necessary under our case law nor
consistent with it.”).
Two criteria have evolved for determining whether prior art is analogous: (1)
whether the art is from the same field of endeavor, regardless of the problem
addressed, and (2) if the reference is not within the field of the inventor's endeavor,
whether the reference still is reasonably pertinent to the particular problem with
which the inventor is involved. In re Deminski, 796 F.2d 436, 442, 230 USPQ 313,
315 (Fed.Cir. 1986); In re Wood, 599 F.2d 1032, 1036, 202 USPQ 171, 174
(CCPA 1979). Some question whether the analogous art test remains the same
following the Supreme Court’s ruling in KSR, in which the Court found that the
Court of Appeals had erred in assuming that a person of ordinary skill attempting
to solve a problem will be led only to those elements of prior art designed to solve
the same problem. KSR, 127 S.Ct. at 1742, 82 USPQ2d at 1397. We do not need
to decide this issue in the present appeal, because even under the strict analogous
arts test, as set forth in Deminski and Wood, the art relied on by the Examiner in
the present appeal constitutes analogous art for purposes of an obviousness
determination, as explained infra.
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