Appeal 2007-1943
Application 10/443,649
pertains. KSR Int’l Co. v. Teleflex Inc., 127 S.Ct. 1727, 1734, 82 USPQ2d
1385, 1391 (2007). Anticipation has long been recognized as the epitome of
obviousness. In re Pearson, 494 F.2d 1399, 1402, 181 USPQ 641, 644
(CCPA 1974).
Common sense is the key to determining unpatentability. KSR Int’l
Co. v. Teleflex Inc., 127 S.Ct. at 1742, 82 USPQ2d at 1397. To paraphrase
an old saying, “If it looks like a duck, walks like a duck, and quacks like a
duck, it should be a duck.” In re Swinehart, 439 F.2d at 212, 169 USPQ at
229, said the same thing, but with less panache. “[M]ere recitation of a
newly discovered function or property, inherently possessed by things in the
prior art, does not cause a claim drawn to those things to distinguish over the
prior art.” Id. The PTO, of course, would have entertained and evaluated
timely submitted evidence to the contrary; apparently Appellants made a
litigation decision not to submit any needed evidence.
Conclusion
Having considered all the evidence of record and arguments for and
against the patentability of Claims 1-17 and 25-33 of Application
10/443,649, we affirm the Examiner’s final rejection of Claims 1, 2, 4, 6-12,
14, 16, 17, and 25-33 under 35 U.S.C. § 102(b) or under 35 U.S.C. § 103
over Didchenko, U.S. Patent 4,645,584, patented February 24, 1987; and
affirm the Examiner’s final rejection of Claims 3, 5, 13, and 15 under 35
U.S.C. § 103 in view of Didchenko.
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