Appeal 2007-2206
Application 10/181,977
pattern, rendering the sheet unsatisfactory for its intended purpose and
leading the skilled artisan away from the change” (id.).
We do not find this argument persuasive. “A reference may be said to
teach away when a person of ordinary skill, upon reading the reference,
would be discouraged from following the path set out in the reference, or
would be led in a direction divergent from the path that was taken by the
applicant.” In re Kahn, 441 F. 3d 977, 990, 78 USPQ2d 1329, 1338 (Fed.
Cir. 2006) (quoting In re Gurley, 27 F.3d 551, 553, 31 USPQ2d 1130, 1131
(Fed. Cir. 1994)). However, it is well settled that “[n]on-obviousness cannot
be established by attacking references individually where the rejection is
based upon the teachings of a combination of references. . . . [The
reference] must be read, not in isolation, but for what it fairly teaches in
combination with the prior art as a whole.” In re Merck & Co., 800 F.2d
1091, 1097, 231 USPQ 375, 380 (Fed. Cir. 1986).
Laurent discloses that, “[b]y arraying the second [(shorter)]
protrusions to create protrusion-free zones . . . between the pattern elements
and the background pattern, the contrast is raised and the visual appearance
improved” (Laurent, col. 6, ll. 38-42). Thus, Laurent teaches that
unembossed zones, such as disclosed by Roussel, raise the contrast and
improve the visual appearance of sheets having two embossment patterns.
We therefore do not agree that Roussel teaches away from a tissue paper
sheet having two series of protrusions with different heights, when Roussel
is read in light of Laurent’s teachings. We affirm the Examiner’s rejection
of claim 9.
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