Appeal 2007-2537
Application 11/170,468
1 A claimed invention is not patentable if the subject matter of the
2 claimed invention would have been obvious to a person having ordinary
3 skill in the art. 35 U.S.C. § 103(a); KSR Int’l Co. v. Teleflex Inc., 127 S. Ct.
4 1727, 82 USPQ2d 1385 (2007); Graham v. John Deere Co. of Kansas City,
5 383 U.S. 1 (1966).
6 Facts relevant to a determination of obviousness include (1) the scope
7 and content of the prior art, (2) any differences between the claimed
8 invention and the prior art, (3) the level of skill in the art and (4) any
9 relevant objective evidence of obviousness or non-obviousness. KSR,
10 82 USPQ2d at 1389, Graham, 383 U.S. at 17-18.
11 E. Analysis
12 Group I (claims 1, 2, 4, 6-8, 10 and 234)
13 The Examiner relied on paragraph 0004 of Applicants’ specification
14 as admitted prior art. The paragraph is found under the title “Brief
15 Description of Prior Developments” and describes that temperature
16 indicating labels and paints are known and on sale (FF 13). Applicants
17 argue that paragraph 0004 of the specification is not an admission that the
18 labels are analogous prior art (FF 22(a)) and that the “applicants’ attorney
19 does not know whether or not the products mentioned in the background
20 section were on sale more than one year before the filing of the present
21 patent application” (Reply Br. 2). Applicants’ response to the
4 Applicants do not include dependent claim 23 with any of its groups.
Claim 23, which depends from claim 1, stands or falls with Group I, since it
9
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