Appeal 2007-2640
Application 09/933,517
Examiner contends that it would have been obvious to modify the device
disclosed by Meilahn with the plurality of extensions as taught by Sibinski
“to impede the movement of fish approaching the swimming pool structure”
(Answer 13).
Appellant contends that “the use of pins to impede the swimming of
fish near freshwater dams in no way suggests or motivates one of ordinary
skill in the art to attach an appendage to swimming pool structure harboring
deep-sea water for protection against attacks by sea creatures” (Reply Br.
13).
We are not persuaded that the Examiner erred in concluding that
claims 14 and 15 are further obvious in view of Sibinski. Meilahn does not
expressly state that its aquaculture tank requires protection from invading
fish present in the waters which surround the tank. However, a suggestion,
teaching, or motivation to combine the relevant prior art teachings does not
have to be found explicitly in the prior art. “[T]he teaching, motivation, or
suggestion may be implicit from the prior art as a whole, rather than
expressly stated in the references. . . The test for an implicit showing is
what the combined teachings, knowledge of one of ordinary skill in the art,
and the nature of the problem to be solved as a whole would have suggested
to those of ordinary skill in the art.” In re Kahn, 441 F.3d 977, 987-988, 78
USPQ2d 1329, 1336 (Fed. Cir. 2006). Here, Meilahn’s tank is for creating a
defined environment for aquatic animals (Meilahn, at col. 3, ll. 5-12).
Consequently, it is reasonable to conclude that the skilled person would
want to exclude alien animals living in the surrounding waters from invading
the defined environment.
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