Appeal 2007-1963
Application 10/121,226
We disagree. We note that the Examiner relies on Hoyt to show that
it was known in the prior art to use a conductive probe for power generation
on a vehicle (See Answer 10). Thus, Hoyt must be read, not in isolation, but
for what it fairly teaches in combination with the prior art as a whole. Our
reviewing court has stated: “[t]he use of patents as references is not limited
to what the patentees describe as their own inventions or to the problems
with which they are concerned. They are part of the literature of the art,
relevant for all they contain.” In re Heck, 699 F.2d 1331, 1333 (Fed. Cir.
1983) (quoting In re Lemelson, 397 F.2d 1006, 1009 (CCPA 1968)).
With respect to the issue of hindsight, in KSR the U.S. Supreme Court
reaffirmed that “[a] factfinder should be aware, of course, of the distortion
caused by hindsight bias and must be cautious of arguments reliant upon ex
post reasoning.” KSR, 127 S. Ct. at 1742. See also Graham v. John Deere
Co., 383 U.S. 1, 36. Nevertheless, in KSR the Supreme Court also qualified
the issue of hindsight by stating that “[r]igid preventative rules that deny
factfinders recourse to common sense, however, are neither necessary under
our case law nor consistent with it.” KSR, 127 S. Ct. at 1742-43.
In KSR, the Supreme Court further stated:
When a work is available in one field of endeavor,
design incentives and other market forces can
prompt variations of it, either in the same field or a
different one. If a person of ordinary skill can
implement a predictable variation, § 103 likely
bars its patentability. For the same reason, if a
technique has been used to improve one device,
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