Appeal 2007-2227
Application 10/778,963
Cayton are designed to be used together as a single extension of a fixed length."
(Br. 8.) Appellant also urges:
The Cloud references teaches ear art in Figs. 32 to 34. In Fig. 32, the
Cloud ear art includes a long wire in a loop 166 joining two hooks 162
and 164 that have large spirals and are joined together to form a loop
50. In Cloud there are spirals, but the spirals are not side by side
joined at a center and extending in opposite directions therefrom. On
the contrary, in Cloud the loops are greatly spaced from one another
along the connecting wire and do not extend in opposite directions,
but rather toward each other. In Cloud the spirals are joined with each
other, . . . and not with any other structure nor is such suggested. It is
especially noted that the Cloud devices are of a fixed length, are not
intended to be used as an extension for anything else and teach spirals
that are joined to each other on a single device rather than being
joined to another device or another structure such as a necklace.
(Br. 8-9).
The ultimate determination of whether an invention would have been
obvious is a legal conclusion based on the totality of the evidence.
Richardson-Vicks Inc. v. Upjohn Co., 122 F.3d 1476, 1483, 44 USPQ2d 1181,
1187 (Fed. Cir. 1997). The underlying factual inquiries to an obviousness
determination include: (1) the scope and content of the prior art; (2) the level of
ordinary skill in the prior art; (3) the differences between the claimed invention and
the prior art; and (4) objective evidence of nonobviousness. See Graham v. John
Deere Co., 383 U.S. 1, 17-18, 148 USPQ 459, 467 (1966); In re Dembiczak, 175
F.3d 994, 998, 50 USPQ2d 1614, 1616 (Fed. Cir. 1999). “[W]hen the question is
whether a patent claiming the combination of elements of prior art is obvious” the
relevant question is “whether the improvement is more than the predictable use of
prior art elements according to their established functions.” KSR Int’l Co. v.
Teleflex Inc., 127 Ct. 1727, 82 USPQ2d 1385 (2007). Moreover, in Gardner v.
TEC Sys., Inc., 725 F.2d 1338, 1345, 220 USPQ 777, 783 (Fed. Cir. 1984), the
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