Appeal 2007-2027
Application 10/210,269
construct the rigid portion of Lukens’ cup from ABS, because, as disclosed
by McKay, ABS is a rigid material that resists forces from impacts to the
body, and distributes those forces over a relative large area.
Appellant argues that McKay uses the ABS as the inner material of
the device, covering both the front and back of the ABS with foam (id. at 8).
Appellant argues that the rejection therefore reverses McKay’s teachings by
“taking the inner material that is hard and substituting it for the outer
material of Lukens, rather than substituting inner material for inner material”
(id.). Thus, Appellant argues, “there is no suggestion in any of the
references that one would modify a portion of Lukens with the outer hard
portion claimed herein, because this is contrary to the teachings of the
references” (id.).
We are not persuaded by this argument. As recently stated by the
United States Supreme Court in KSR Int'l v. Teleflex Inc., 127 S. Ct. 1727,
1742, 82 USPQ2d 1385, 1397 (2007), “[a] person of ordinary skill is . . . a
person of ordinary creativity, not an automaton.” Thus, the analysis under
35 U.S.C. § 103 “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.” Id. at 1741, 82 USPQ2d at 1396.
Although the rigid portion of McKay’s protective device is contained
between two resilient outer portions, one of ordinary skill would have
recognized from McKay that the properties of ABS make it desirable to use
in protective devices such as Lukens’ cup (McKay, col. 3, ll. 25-30). We
therefore agree with the Examiner that McKay would have given one of
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