Appeal 2007-2208
Application 10/650,510
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 Co. v. Teleflex, Inc., 127 S. Ct. 1727, 1740-741, 82 USPQ2d
1385, 1396 (2007) quoting In re Kahn, 441 F.3d 977, 988, 78 USPQ2d
1329, 1336-337 (Fed. Cir. 2006); see also DyStar 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
art, the examiner could then properly rely, as put forth by the solicitor, on a
conclusion of obviousness ‘from common knowledge and common sense of
the person of ordinary skill in the art without any specific hint or suggestion
in a particular reference.’”).
With respect to all of the Examiner’s obviousness rejections, the
thrust of Appellants’ arguments are directed to an alleged lack of teaching or
suggestion of the particle size requirement of the respectively rejected
claims in the applied references and to an allegation of unexpected results
based on the claimed particle size limitation (Br., 4-9).
Hence, the principal issues before us are: (1) Have Appellants
identified reversible error in the Examiner’s obviousness rejections based on
an alleged failure of the Examiner to present a prima facie case of
obviousness for the claimed subject matter because of a lack of
3
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Last modified: September 9, 2013