Appeal 2007-2215
Application 09/918,287
1 In re Sovish, 769 F.2d 738, 743, 226 USPQ 771, 774 (Fed. Cir. 1985). A person of
2 ordinary skill is also a person of ordinary creativity, not an automaton. KSR
3 International Co. v. Teleflex Inc., 127 S. Ct. 1727, 1742, 82 USPQ2d 1385, 1397
4 (2007). Rigid rules that deny factfinders recourse to common sense are neither
5 necessary nor consistent with case law. Id. In considering suggestions from the
6 prior art for determining obviousness, the proper approach is quite flexible and
7 requires consideration of common knowledge and common sense. DyStar
8 Textilfarben GmbH & Co. Deutschland KG v. C. H. Patrick Co., 464 F.3d 1356,
9 1367, 80 USPQ2d 1641, 1651 (Fed. Cir. 2006).
10 F. Analysis
11 The Anticipation Rejection of Claims 1-7 over Weston
12 The Examiner has determined that the entire theme park of Weston qualifies
13 as a single entertainment event. (Answer 5, l. 12). The Examiner has also
14 determined that in Weston each particular location in the theme park where images
15 are taken of a customer constitutes a seating location of the customer for the
16 entertainment event. (Answer 6, ll. 17-18). In our view, the broadest reasonable
17 interpretation of the claim term “seating location of the customer at the
18 entertainment event” in light of the specification is not broad enough to encompass
19 the scope attributed to the term by the Examiner.
20 Based on the Applicants’ Specification, the seating location of a customer at
21 an entertainment event is fixed and determined, not subject to change during the
22 event and not shared with other customers at the event. It is no different from what
23 we are all familiar with in the case of concerts and games in professional sports.
24 The Applicants do not define anything out of the ordinary. As is stated in the
25 Specification on page 6, lines 4-7:
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