Appeal 2007-2488
Application 10/081,483
1 prior art does not possess the characteristic relied on.'” In re Swinehart, 439
2 F.2d 210, 212-13, 169 USPQ 226, 229 (CCPA 1971)."
3 35 U.S.C. § 103
4 “A patent may not be obtained though the invention is not identically
5 disclosed or described as set forth in section 102 of this title, if the
6 differences between the subject matter sought to be patented and the prior art
7 are such that the subject matter as a whole would have been obvious at the
8 time the invention was made to a person having ordinary skill in the art to
9 which said subject matter pertains.” 35 U.S.C. § 103(a).
10 There need not be explicit suggestion in the prior art to combine the
11 teachings of prior art references. As stated by the Supreme Court of the
12 United States, “[t]he obviousness analysis cannot be confined by a
13 formalistic conception of the words teaching, suggestion, and motivation, or
14 by overemphasis on the importance of published articles and the explicit
15 content of issued patents.” KSR Intl’l Co. v. Teleflex, Inc., 127 S. Ct. 1727,
16 1741, 82 USPQ2d 1385, 1396 (2007). Therefore “[t]he combination of
17 familiar elements according to known methods is likely to be obvious when
18 it does no more than yield predictable results.” KSR, 127 S.Ct. at 1739, 82
19 USPQ2d at 1395. Moreover, “if a technique has been used to improve one
20 device and a person of ordinary skill in the art would recognize that it would
21 improve similar devices in the same way, using the technique is obvious
22 unless its actual application is beyond his or her skill.” KSR, 127 S.Ct. at
23 1731, 82 USPQ2d at 1389.
24 In determining whether claimed subject matter would have been
25 obvious we take into consideration (1) the scope and content of the prior art,
14
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