Appeal 2007-2235
Application 10/138,617
result. See Pfizer Inc. v. Apotex Inc., 480 F.3d 1348, 1368-69, 82 USPQ2d
1321, 1335-36 (Fed. Cir. 2007). Moreover, as noted above, 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.” KSR Int'l v. Teleflex Inc., 127 S. Ct. 1727, 1741, 82
USPQ2d 1385, 1396.
In our view, one of ordinary skill would have inferred from Apel and
Kneer that contacting the contaminated gases with the decontaminating
microorganisms for longer periods would result in removing increased
amounts of contaminant. Thus, one of ordinary skill, being a person of
ordinary creativity, would have recognized that the duration of contact
between the microorganisms and the contaminated gases was a
result-affecting parameter. We therefore agree with the Examiner that
determining an optimal time for retaining the polluted gases within Hudgins’
aerobic landfill would have been a matter of routine optimization on the part
of one of ordinary skill. Because Appellant has not shown that a 40 hour
detention time produces any unexpected result when compared to the prior
art, we also agree that the detention time recited in claim 18 would have
been obvious. We therefore affirm the Examiner’s rejection of claim 18
over Hudgins, Apel and Kneer.
5. OBVIOUSNESS -- CLAIMS 4, 6, 8-13, 15-17, and 23
Claims 4 and 23 stand rejected under 35 U.S.C. § 103 as obvious in
view of Hudgins, Kneer, Apel, and Pomeroy (Answer 8).
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