Appeal 2007-1945
Application 10/669,215
claims 1 through 4, 7 through 10, 12, 15 through 20, 31 through 37, 39, 40,
and 42 anticipated within the meaning of 35 U.S.C. § 102(b).
In assessing the propriety of this § 102(b) rejection, we are mindful of
the showing of unexpected results relied upon by the Appellants. However,
as held in In re Malagari, 499 F.2d 1297, 1302-303, 182 USPQ 549, 553
(CCPA 1974), this showing cannot overcome the § 102 rejection.
2. OBVIOUSNESS
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 v. Teleflex, Inc., 127 S. Ct. 1727, 1740-41, 82 USPQ2d
1385, 1396 (2007) quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d
1329, 1336-37 (Fed. Cir. 2006); seeDyStar 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
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