Appeal 2007-2404
Application 10/445,666
Laboratories Inc., 874 F.2d 804, 807 (Fed. Cir. 1989) (quoting In re
Lamberti, 545 F.2d 747, 750 (CCPA 1976).)
In the instant case, Reitz discloses the claimed features of flexible
material and chin to forehead coverage:
The decorative face mask of the present invention
includes a mask body which is preferably fabricated from a
rigid or semi-rigid polymer material. However, the use of other
rigid, semi-rigid or flexible materials (e.g., rubber, thickened
paper, etc.) is specifically contemplated herein. The mask body
may be sized and configured in differing styles to extend over
the entirety or portions of the user’s face.
(Reitz, col. 2, ll. 16-23, emphases added.) Thus, Reitz discloses that the
features recited in claim 1 were suitable for use in headgear for sports fans.
Appellant argues that the combination of Reitz and Frislie does not
render claim 1 obvious because Frislie is directed to a cold weather garment
in which a face protector is attached to a parka-type hood, whereas Reitz has
a separate mask and cap which are loosely connected by a flexible fastener,
the mask being wearable on the back of the user’s neck when not placed
over the face (id. at 6-7). Appellant emphasizes that Reitz teaches
consistently “that his mask is intended to be worn directly on the user’s head
as an alternative to connection with the cap. Therefore, Reitz’s own
statements completely contradict any suggestion of a permanent attachment
between the mask and cap as the Examiner suggests in his rejection” (id. at
6).
We are not persuaded by these arguments. As the Supreme Court
recently stated, “[a] person of ordinary skill is . . . a person of ordinary
creativity, not an automaton.” KSR, 127 S. Ct. at 1742. Thus, the analysis
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