Appeal 2007-1890
Application 10/444,624
(3) Appellants admit that it was known in this art that oxygen-
sensitive products benefit from the use of oxygen scavengers in their
packaging; that packaging films often require antifog properties in order to
provide a final packaged product without excessive moisture buildup on the
interior surface of the package; and that conventional or typical antifog films
employ a symmetric film structure with antifog agent present in both outer
surface layers of the film (Specification 1:15-21; 1:32-33; 1:37-2:1; and
2:19-20).
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 considerations. See Graham v.
John Deere of Kansas City, 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966).
“The combination of familiar elements according to known methods is likely
to be obvious when it does no more than yield predictable results.” KSR
Int’l Co. v. Teleflex, Inc., 127 S.Ct. 1727, 1739, 82 USPQ2d 1385, 1395
(2007). The analysis supporting obviousness should be made explicit and
should “identify a reason that would have prompted a person of ordinary
skill in the art to combine the elements” in the manner claimed. KSR,
127 S. Ct. at 1731, 82 USPQ2d at 1389. It is axiomatic that admitted prior
art in an applicant’s specification may be used in determining the
patentability of a claimed invention. See In re Nomiya, 509 F.2d 566, 570-
71, 184 USPQ 607, 611-12 (CCPA 1975). Consideration of the prior art
cited by the Examiner may include consideration of the admitted prior art
found in an applicant’s specification. See In re Davis, 305 F.2d 501, 503,
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