Appeal 2007-1858
Application 10/800,566
FACTS, PRINCIPLES OF LAW, AND ANALYSES
Under 35 U.S.C. § 103, the factual inquiry into obviousness requires a
determination of: (1) the scope and content of the prior art; (2) the
differences between the claimed subject matter and the prior art; (3) the level
of ordinary skill in the art; and (4) secondary consideration (e.g., unexpected
results). Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 17-18,
148 USPQ 459, 467 (1966). “[A]nalysis [of whether the subject matter of a
claim is obvious] need not seek out precise teachings directed to the specific
subject matter of the challenged claim, for a court can take account of the
inferences and creative steps that a person of ordinary skill in the art would
employ.” KSR Int’l Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1741, 82 USPQ2d
1385, 1396 (2007) quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d
1329, 1336 (Fed. Cir. 2006); see also DyStar Textilfarben GmBH & Co.
Deutschland KG v. C.H. Patrick Co., 464 F.3d 1356, 1361, 80 USPQ2d
1641, 1645 (Fed. Cir. 2006)(“The motivation need not be found in the
references sought to be combined, but may be found in any number of
sources, including common knowledge, the prior art as a whole, or the
nature of the problem itself.”); In re Bozek, 416 F.2d 1385, 1390, 163 USPQ
545, 549 (CCPA 1969)(“Having established that this knowledge was in the
art, the examiner could then properly rely, as put forth by the solicitor, on a
conclusion of obviousness ‘from common knowledge and common sense of
the person of ordinary skill in the art without any specific hint or suggestion
in a particular reference.’”).
Here, Krishnakumar teaches (col. 1, ll. 5-9) that:
The present invention relates to a pasteurizable plastic
container having a plurality of flexible panels which
accommodate both an increase and subsequent decrease in
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