Appeal 2007-2519
Application 10/616,208
We note that the U.S. Supreme Court recently reaffirmed that “[a]
factfinder should be aware, of course, of the distortion caused by hindsight
bias and must be cautious of argument reliant upon ex post reasoning.” KSR
Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 82 USPQ2d at 1397. See also
Graham v. John Deere Co., 383 U.S. at 36, 148 USPQ at 474. Nevertheless,
in KSR the Supreme Court also qualified the issue of hindsight by stating
that “[r]igid preventative rules that deny factfinders recourse to common
sense, however, are neither necessary under our case law nor consistent with
it.” KSR Int’l Co. v. Teleflex Inc., 127 S. Ct. 1727, 82 USPQ2d at 1397.
Here, we conclude that a person of ordinary skill in the art having
common sense at the time of the invention would not have reasonably
combined the Feyereisen and Amro references in the manner suggested by
the Examiner. In particular, we see no deficiency in the teachings of
Feyereisen that would have led an artisan familiar with aircraft displays and
controls to look to Amro’s unrelated teaching of a PDA stylus-triggered
resizing feature. In the record before us, we find only the instant
Specification teaches or suggests that a stylus could conceivably be used in
an aircraft for the purpose of control panel data entry or adjustment (see
Specification 8, l. 6). Therefore, we agree with Appellant that the Examiner
has impermissibly relied upon hindsight in formulating the rejection.
Moreover, based upon the record before us, we conclude that the instant
invention (as claimed) is a nonobvious advancement in aircraft safety that is
more than the predictable use of prior art elements according to their
established functions.
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